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UNIVERSITY 

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LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


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JL    TREi^TlSE 


ON 


THE  LAW 


Suretyship  and  Guaranty 


By 
DARIUS  H.  PIXGREY,  LL.  D., 

Author  of  Treatises  on  Chattel  Mortgages,  Real  Estate  Mortgages  and 

Real  Property. 


SECOND  EDITION 

By  HOWARD  C.  JOYCE. 


Albany,  N.  Y., 
MATTHEW  BENDER  &  00. 

1913. 


Copyright,  1900, 
By  DARIUS  H.  PINGREY 


Copyright,  1913, 
By  MATTHEW  BENDER  &  CO. 


Jc-i 


^~21-S^1 


1^ 

I 

I 


PREFACE. 


In  the  preparation  of  this  edition  it  has  been  the  purpose  of 
the  editor  to  follow  out  the  general  plan  and  scope  of  the  first 
edition  of  the  work  which  was  published  in  1901.  Since  that 
date  there  has  been  much  litigation  involving  questions  as  to  con- 
tracts of  suretyship  and  guaranty.  Also,  while  these  contracts 
were  formerly  assumed  by  individuals,  such  obligations  are  at  the 
present  time  to  a  great  extent  undertaken  by  corporations  which, 
have  been  organized  for  the  express  purpose  of  securing,  or  it 
may  be  said  insuring,  the  performance  of  duties  and  obligations; 
by  others.  This  new  phase  of  the  subject  has  been  fully  treated 
by  the  editor,  both  as  regards  the  contract  so  entered  into  and  as 
affected  by  legislative  act.  All  cases  bearing  upon  the  general 
principles  of  the  subject  decided  since  the  first  edition  have,  it  is 
believed,  been  included.  Also  the  notes  have  been  greatly  enlarged, 
both  by  decisions  prior  to  1901,  which  were  not  cited  in  the  first 
editions  and  by  appropriate  illustrations  of  the  application  of  gen- 
eral rules. 

Another  feature  which  is  of  importance  at  the  present  time  is 
xhat  relating  to  sureties  for  the  performance  of  building  contracts. 
This  subject  the  editor  has  endeavored  to  treat  fully  and  yet  in 
the  same  concise  and  thorough  manner  which  met  with  so  favor- 
able approval  in  the  first  edition. 

It  is  with  the  sincere  hope  that  the  new  edition  will  merit  the 
same  cordial  reception  accorded  to  the  first  that  it  is  respectfully 
submitted.  H,  C.  J. 

New  York,  January  2,  1913. 


PREFACE. 


It  lias  been  the  endeavor  in  writing  this  work  to  present  a 
systematic  and  concise  treatise  on  the  subject  of  Suretyship 
and  Guaranty.  To  do  this  the  early  and  leading  cases  have 
been  used  to  show  the  elementary  and  indisputable  principles  of 
the  subject.  The  other  cases,  including  the  very  latest,  have 
been  cited  to  show  the  application  of  these  principles  in  the 
interpretation  of  the  law  of  to-day,  which  is  the  most  useful 
because  the  most  needed. 

It  has  been  the  aim  to  state  the  principles  of  law  as  settled 
by  the  weight  of  authority,  in  a  clear  and  succinct  manner,  with- 
out entering  upon  a  protracted  philosophical  discussion,  or  mar- 
shaling in  the  text  an  array  of  conflicting  decisions,  except  as  to 
the  established  law  of  the  different  States. 

A  more  elaborate  work  could  have  been  constructed  with  less 
time  and  labor.  Definitions  have  been  formulated  and  princi- 
ples stated,  it  is  hoped,  with  perspicuity  and  accuracy.  Many 
cases  have  been  cited  which  may  be  used  as  a  basis  of  an  ex- 
haustive examination  of  the  subject  when  a  brief  is  desired. 

The  student  will  find  that  this  treatise  will  serve  him  in  the 
law  school  and  then  in  his  practice ;  having  studied  the  work,  he 
will  know  where  to  find  the  law,  a  knowledge  which  distinguishes 
every  great  lawyer. 

In  conclusion  it  is  proper  to  say  that  this  work  has  been 
prepared  by  the  author's  personal  labor. 

Dakius  H.  Pingrey. 
Bloomington,  III,  Jan.  21,  1901. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

i^ATURE  AND  EFFECT. 


Section  i.     Principal. 

2.  Surety. 

2a.  Rights  of  Surety  to  Indemnity. 

2b.  Contract  to  Pay  Another  to  Act  as  Surety. 

3.  Co-surety. 

3a.  Terms  "  Guarantor  "  and  "  Surety  "  Generally. 

4.  Distinction  between  Suretyship  and  Guaranty. 

5.  How  Created. 

6.  Nature  of  Surety's  Liability. 

7.  Ignorance  of  Co-surety's  Obligation. 

8.  Substitution  of  Sureties. 

9.  Successive  Bonds. 

10.  Agreement  as  to  Liability  Among  Sureties. 

11.  Grantee  of  Mortgaged  Premises. 

12.  Rights  of  Mortgagee  —  In  Equity  or  in  Law. 

13.  The  Mortgagee  Must  Assent. 

14.  Accommodation  Indorser. 

15.  The  Acceptor  of  Drafts. 

16.  Indorser  of  Notes. 

17.  Notes  Payable  to  Maker. 

18.  Pledging  or  Mortgaging  Property  to  Secure  Debt  of  Another 

Person. 

19.  Mortgaging  of  Wife's  Separate  Property  to  Secure  the  Debts 

of  Her  Husband. 

20.  Dissolution  of  Partnership  —  One  or  More  Partners  Assuming 

Partnership  Debts. 

21.  Partners  or  Principals  Agreeing  Among  Themselves  —  Effect 

on  Creditors'  Rights. 

22.  Joint  Contract. 

23.  Joint  Executors  and  Administrators. 

■CHAPTER  II. 

THE  PARTIES. 

Section  24.  Infants. 

25.  Insane  Persons. 

26.  Partnership. 

27.  Attorneys-at-Law  —  Sureties   for   Their   Clients  —  Statutory 

Prohibitions. 

(v) 


VI 


Table  of  Contents. 


Section  28.  Corporations. 

29.  National  Banks, 

30.  Ultra  Vires  Contracts. 

31.  Implied  Power  to  Become  Surety. 

32.  Principal  Under  Duress. 

33.  Non-residents. 

34.  Surety  and  Guaranty  Companies  Generally. 

CHAPTER  III. 


EXECUTION  OF  THE  CONTRACT. 

Secjtion  35.  Consideration. 

36.  Indorsing  Note  Before  and  After  Execution. 

37.  Surrender  of  Old  Note  for  New  Note. 

38.  The  Consideration  Must  be  Legal. 

39.  Concurrent  Contracts. 

40.  Surety's  Promise  Being  the  Inducement. 

41.  Executed  Contract. 

42.  Extension  of  Time  —  Promise  of  Third  Person  to  Pay. 

43.  Agreement  to  Forbear  for  an  Indefinite  Time. 

44.  An  Agreement  Must  be  Made  to  Forbear. 

45.  Offer  to  Become  Surety  for  Another. 

46.  Extension  of  Time  —  Agreement  to  Pay  Interest. 

47.  Both  Parties  Must  be  Bound. 

48.  Extension  of  Time  by  Paying  Interest  —  Contrary  Doctrine. 
48a.  Place  of  Signature. 

49.  Delivery  of  Contract. 

50.  Delivery  in  Escrow. 

51.  Wrongful  Delivery  by  Principal. 

52.  Imperfect  Instrument. 

53.  Surety's  Name  Not  Appearing  in  Body  of  the  Instrument. 

54.  Principal  Not  Signing. 

55.  Alteration  of  the  Instrument. 

56.  Filling  Blanks  —  As  to  Surety's  Liability. 
57  Negotiable  Notes. 

58.  Surety  Signing  as  Principal. 

59.  Estoppel  of  Surety  to  Deny  Recitals  in  the  Instrument. 
59a.  Estoppel  to  Deny  Validity. 

60.  Denying  Valid  Appointment  of  Principal. 

61.  Sureties  Cannot  Deny  the  Incorporation  of  Corporate  Bodies 

with  Whom  Their  Principal  Deals. 

62.  Denying  Court's  Jurisdiction. 

63.  Attacking  Bond  in  Collateral  Proceedings. 

64.  Relations  After  Judgment. 

65.  Effect  of  Judgment  on  Surety. 


Table  of  Contents.  vii 

CHAPTER  IV. 

SCOPE  OF  surety's  CONTRACT.. 

Section  66.    Extent  of  Surety's  Contract.. 

67.  Construction  of  Contract  —  At  Law. 

67a.  Where  Bond  Makes  a  Contract  a  Part  Thereof. 
67b.  Statutory  Bond  —  Estoppel. 

68.  Construction  of  Contract  —  In  Equity. 

69.  Liability  for  Past  Defaults  of  Principal. 

70.  Liability  Limited  to  a  Fixed  Time. 

71.  Time  Limited  to  a  Subsequent  Period. 

72.  Employment  or  Condition  Changed  by  Employer  or  by  the 

Legislature. 

73.  Sureties  in  Legal  Proceedings  —  Order  of  Liability. 

74.  Only  Liable  for  Penalty  of  Bond. 

75.  Misappropriation  of  Funds. 

76.  Increase  of  Funds. 

77.  Surety  May  Limit  His  Liability. 

78.  Forged  Signatures. 

79.  Additional  Employment. 

80.  Act  of  Principal  Not  in  Line  of  His  Business. 

81.  Becoming  Surety  for  Payment  of  Rent. 

82.  Tenant  Holding  Over. 

83.  Principal  Associating  with  Others. 

84.  Several  Principals  —  Partnership. 

85.  Death  of  Surety. 

86.  Construing  a  Joint  Obligation  as  Several. 

87.  Revoking  Suretyship. 

88.  Default  of  Principal. 

89.  Revival  of  Surety's  Liability. 

90.  Part  Payment  by  One  of  Several  and  Joint  Debtora. 

91.  Absence  of  Principal  from  State. 

92.  Disability  of  Principal. 

93.  Conflict  of  Laws. 

CHAPTER  V. 

DISCHARGE  OF  SURETY. 

Section     93a.  Discharge  of  Surety  Generally. 

94.  Payment  of  Debt  Discharges  Surety. 

95.  What  Acts  of  Principal  Will  Discharge  the  Surety  After 

Judgment. 

96.  Legality  of  Payment. 

97.  Application  of  Payments. 

98.  Application  by  Law. 

99.  Note  Payable  to  a  Bank — Application  of  Debtor's  Deposit. 
100.     Change  in  the  Principal  Contract. 


viii  Table  of  Contents. 

Section  lOl.  Where  the  Surety  is  Not  Discharged  by  Change  of  Contract, 

102.  Alteration  of  the  Instrument. 

103.  Material  Alteration  of  Instrument. 

104.  Commercial  Instruments. 

105.  Change  of  Date. 

106.  Alteration  of  Amount. 

107.  Alteration  of  the  Rate  of  Interest. 

108.  Changing  the  Place  of  Payment. 

109.  Destroying  the  Identity  of  the  Contract. 

110.  Addition  of  Surety  to  a  Note. 

111.  Changing  the  Contract  of  a  Lease  Signed  by  Surety. 

112.  Building  Contracts. 

112a.  Building  Contracts  —  Surety  Released  by  Change  of. 
112b.  Building  Contracts  —  Where  Change  Authorized. 
112c.  Building  Contracts  —  Permissive  and  Immaterial  Deviations. 
112d.  Building  Contracts  —  Payment  —  Certificate  of  Architect  or 

Other  Person. 
112e.  Building  Contracts  —  Payment  Generally. 
112f.  Building  Contracts  —  Acceptance  by  Architect  —  Certificate. 

113.  Extension  of  Time  of  Payment. 

113a.  Extension  of  Time  of  Payment  —  Where  Instrument  Pro- 
vides for. 

113b.  Extension  of  Time  of  Payment  —  Evidence  —  Burden  of 
Proof. 

114.  Consideration. 

115.  Effect  on  Surety's  Contract  by  Taking  Usury  for  Extension. 

116.  Effect  of  Creditor's  Reservation  of  His  Remedies  Against 

Surety. 

117.  Extension  with  Consent  of  Surety. 

118.  Waiver  of  Discharge. 

119.  Extension  Must  be  for  a  Time  Certain. 

120.  Giving  Time  to  One  of  Two  or  More  Sureties. 

121.  What  is  a  Promise  of  Extension. 

122.  Accepting  New  Note. 

123     Taking  Collateral  Security. 

124.  Personal  Judgment  for  Deficiency  in  Foreclosure  Proceed- 

ings. 

125.  Fraud  —  Extension  of  Time. 

126.  Fraud  to  Induce  Surety  to  Sign  Contract 

127.  Notice  to  Creditor  of  Principal  Debtor's  Dishonesty. 

128.  Negligence    of   Creditor    in    Not    Availing    Himself   of   the 

Debtor's  Means. 

129.  Surety  Signing  Upon  Condition. 

130.  Surrendering  Security. 

131.  Taking  Property  by  Attachment  and  Execution. 

132.  Failure  to  Apply  Securities. 

133.  Release  of  Co-surety. 

134.  Failure  of  Creditor  to  Sue  Principal. 

135.  Disaffirmance  of  Contract  by  Principal. 


Table  of  Contents.  ix 

Section  136.    Fraud  Upon  the  Principal. 

137.  Substitution  of  Securities. 

138.  Payment  of  Consideration  in  Installments  —  Building  Con- 

tracts. 

139.  Tender  of  Payment. 

CHAPTER  VL 

RIGHTS    AND   REMEDIES    OF    SURETY   AS    TO    CREDITOR. 

Section  140.  The  Contract  in  General. 

141.  Diligence  of  Surety. 

142.  Facts  Concealed — Not  Connected  with  the  Contract. 

143.  Facts  Developed  Subsequent  to  the  Contract. 

144.  Set-off  and  Recoupment. 
144a.  Notice  of  Default. 

145.  Compelling  Creditor  to  Bring  Suit. 

146.  Effect  of  Notice  by  Surety  to  Creditor  to  Proceed  to  Collect 

Debt. 

147.  Creditor's  Promise  to  Look  to  the  Principal  only. 

148.  Creditor  Informing  the  Surety  that  the  Debt  is  Paid. 

149.  Surety  May  Compel  Creditor  to  Resort  to  Securities  in  the 

Creditor's  Hands. 

150.  Right  of  Surety  to  Defend  Action  Brought  Against  His  Prin- 

cipal. 

151.  Subrogation  of  Creditor  to  Surety's  Securities. 

152.  Subrogation  of  Surety  to  Creditor's  Rights. 

153.  What  Securities  the  Surety  is  Entitled  to  Claim. 

154.  When  Surety  Can  Take  Securities. 

155.  Stranger  Paying  Debt. 

156.  When  Surety  Will  Not  Be  Subrogated. 

157.  Surety  ]\Iust  First  Pay  the  Debt. 

158.  What  is  Payment. 

159.  Debtor  and  Creditor. 

160.  Fraudulent  Conveyances  of  Principal. 

161.  As  to  Exemptions  of  Principal. 

162.  When  Surety  Owes  Principal. 

163.  Payment  of  a  Specialty  or  Judgment. 

164.  Extent  of  Subrogation. 

165.  Surety  of  a  Surety. 

166.  Co-Sureties. 

167.  Joint  Debtors. 

168.  Successive   Sureties  in  Judicial  Proceedings. 

169.  Guarantors. 

170.  Surety's  Defense  —  In  Courts  of  Equity  or  of  Law. 

171.  Remedies  of  Creditor. 

172.  Death  of  Principal. 

173.  Debt  Barred  Against  the  Principal. 


:x  Table  of  Contents, 

CHAPTER  VII. 

EIGHTS  AND  EEMEDIES   OF   SURETY  AS   TO   PRINCIPAL. 

Section  174.  Liability  of  Principal  to  Surety. 

175.  Payment  Before  Due  by  Surety. 

176.  Part  Payment  by  Surety. 

177.  The  Surety  Must  Be  Under  a  Legal  Obligation  to  Pay, 

178.  Proper  Action  for  Surety  to  Bring  Against  Principal. 

179.  Surety  to  One  of  Partners. 

180.  Surety  Giving  His  Own  Note  in  Payment  of  the  Debt. 

181.  Debt  Satisfied  Out  of  the  Surety's  Property. 

182.  When  the  Surety's  Right  of  Action  is  Complete. 

183.  Liability  of  Principal  for  Surety's  Costs  and  Interest. 

184.  Recovery  of  Consequential  Damages. 

185.  Payment  of  Usury  by  the  Surety. 

186.  What  Amount  the  Surety  Can  Collect  from  the  PrincipaL 

187.  Joint  Suit  by  Sureties. 

188.  Payment  of  Judgment  by  Surety. 

189.  Right  to  Take  Indemnity  from  the  Principal. 

190.  When  the  Principal  is  Not  Liable. 

191.  Voluntary  Payment  by  Surety. 

192.  Statute  of  Limitations  as  Between  Surety  and  Principal. 

193.  Relief  of  Surety  in  Equity. 

CHAPTER  VIII. 


RIGHTS  OF  CO-SURETIES. 

Section  194.     Right  to  Contribution. 

194a.  Right  to  Contribution  Continued. 

194b.  Right  to  Contribution  —  Not  Subject  to  Judicial  Control. 
194c.  Right  to  Contribution — Accommodation  and  Compensated 
Sureties. 

195.  Payment  by  Note. 

196.  Enforcement  at  Law. 

197.  Enforcement  in  Equity. 

198.  The  Co-surety  Cannot  Speculate  to  the  Injury  of  His  Co- 

sureties. 

199.  Surety  of  a  Surety. 

200.  Obligation  to  Contribute. 

201.  Liability  of  Surety's  Estate. 

202.  Remedy  Against  Co-surety  Before  Payment. 

203.  Co-sureties  Under  Different  Instruments. 
1                  204.  The  Obligation  Must  Be  the  Same. 

;  205.  Co-sureties  Limiting  Their  Liability  in  Different  Amounts, 

206.  Accommodation  Indorsers. 

207.  Sureties  in  Lesral  Proceedings. 

208.  Indemnity  to  One  Evrety. 


Tx\BLE  OF  Contents.  xi 

Section  209.     Liability  to  Contribute  on  Successive  Bonds. 

210.  Admissibility  of  Parol  Evidence  to  Show  that  Parties  on  a 

Promissory  Note  are  Co-sureties. 

211.  Statute  of  Limitations. 

212.  Bankruptcy  of  Co-surety. 

CHAPTER  IX. 

SURETIES  ON  BONDS  IN  LEGAL  PROCEEDINGS. 

Section  213.  Discharge  of  Surety  on  Dissolution  of  Attachment. 

214.  Exoneration  of  Sureties  on  Attachment  Bonds. 

215.  Judgment  of  Non-suit. 

216.  Attachment  Lien  Being  Discharged  —  Insolvency  of  Debtor. 

217.  Increase  of  Claim  by  Amendment  of  Declaration. 

218.  Bringing  in  New  Parties  as  Defendants. 

219.  Trespass  by  Officer. 

220.  Delivery  Bond  —  Rights  of  Surety  to  Property. 

221.  Void  Bond. 

222.  Damages. 

223.  The   Surety   is  Concluded   by  the   Judgment  Against   His 

Principal. 

224.  Appeal  Bond  —  Discharge  of  Sureties. 

225.  Appeal  to  a  Special  Court. 

226.  Change  of  Issue  and  Parties. 

227.  Enlargement  of  Claim. 

228.  Agreement  of  Litigants. 

229.  Suggessive  Appeal  Bonds  are  Cumulative. 

230.  Indemnity  Bonds. 

231.  Liability  on  Indemnity  Bonds. 

232.  Injunction  Bonds  —  Liability  of   Surety. 

233.  When  Suit  May  Be  Brought  for  Breach, 

234.  Liability,  Joint  and  Several. 

235.  What  Law  Governs. 
235a.  Liability  and  Damages 

236.  Dissolution  by  Series  of  Orders. 

237.  Concluded  by  Judgment  Against  Principal. 

238.  Replevin  Bond. 

239.  Discharge  of  Surety. 

240.  New  Parties  —  Substitution. 

241.  Varying  the  Terms  of  the  Bond. 

CHAPTER  X. 

BONDS  OF  PERSONS  ACTING  UNDER  JUDICIAL  SANCTION. 
Section  242.     Executors  and  Administrators. 

243.  Estoppel  by  Judgment  Against  PrincipaL 

244.  Income  of  Real  Estate. 

245.  Sale  of  Real  Estate  Beyond  Jurisdiction  of  Court. 

246.  Surety  is  Liable  Only  for  Principal's  Official  Acts. 


x'li  Table  of  Coxtents. 

Section  147.  Giving  New  or  Additional  Bond. 

248.  Liability  of  Discharged  Surety. 

249.  Sureties  on  Joint  Bonds. 

250.  Allowances  to  Intestate's  Widow  and  Family. 

251.  Executor  or  Administrator  Debtor  to  the  Estate. 

252.  Common-Law  Rule  as  to  Executor  Being  Debtor  to  the  Es- 

tate. 

253.  General  Liability  of  Sureties. 

254.  Same  Person  Administrator  of  One  Estate  and  Executor  of 

another. 

255.  Executor  or  Administrator  Acting  in  Other  Fiduciary  Ca- 

pacity. 

256.  Failure  to  Return  Inventory  or  to  Account. 

257.  Release  of  Sureties. 

258.  When  Right  of  Action  Arises  Against  Sureties. 

259.  Sureties  of  Guardian  —  General  Liability. 
259a.  Bond  not  Complying  with  Statute. 

260.  Giving  Additional  Security. 

261.  Guardian  Selling  Real  Estate. 

262.  Discharge  of  Surety. 

263.  Termination  of  Surety's  Liability. 

264.  When  Action  upon  the  Bond  Accrues. 

265.  Estoppel  by  Judgment  Against  Principal. 

266.  Estoppel  by  Recitals  in  the  Bond. 

267.  Joint  Guardians. 

268.  Joint  Bond  Instead  of  Several. 

269.  Extent  of  Surety's  Liability. 

270.  Revival  of  Liability  by  Surety. 

271.  Receiver's  Bond  —  Liability  of  Sureties. 

272.  Right  of  Action  Against  Surety  on  Receiver's  Bond. 

273.  When  Surety  is  Concluded  by  Decree  of  Court. 

274.  Funds  Coming  Into  the  Hands  of  the  Receiver. 

275.  Giving  a  New  Bond. 

276.  Extent  of  Surety's  Liability. 

277.  Liability  of  Surety  on  Assignee's  Bond. 

278.  Estoppel  of  Surety. 

279.  Giving  New  Bond. 

280.  Default  of  Assignee. 

281.  Discharge  of  Surety. 

CHAPTER  XL 

BONDS  OF  PRIVATE  OFFICERS  AXD  AGENTS. 

Section  282.  Duration  of  Surety's  Liability. 

283.  Continuing  Liability  of  Surety. 

284.  Restriction  of  Surety's  Liability  by  Recitals  in  the  Bond. 

285.  As  to  the  Scope  of  the  Officer's  Employment. 

286.  Increase  of  Capital  Stock  of  Corporation. 

287.  Discharge  of  Surety  by  Fraud. 


Table  of  Contents.  xiii 

Section  287a.  Bond  and  Application  Construed  Together  —  Effect  of  State- 
ments in  Application. 

288.  Bond  Covering  Prior  and  Subsequent  Defaults. 

289.  Principal  His  Own  Successor. 

290.  Continuing  Principal  in  Office  After  Known  Defaults. 

291.  Delinquency  of  Obligee. 

292.  Failure  to  Discharge  Delinquents. 

293.  Failure  to  Notify  Surety  of  Default. 

294.  Covenant  not  to  Sue. 

295.  Accord  and  Satisfaction. 

296.  Notice  of  Surety's  Withdrawal. 

297.  Discharge  by  Acts  of  Obligee. 
297a.  Departure  from  Terms  of  Contract. 

298.  Action  on  the  Bond. 

299.  Sureties  Concluded  by  Recitals  in  a  Bond. 

300.  Liability  for  Loss  of  Money. 

CHAPTER  XII. 

BONDS  OF  PUBLIC   OFFICERS  AND  AGENTS 

Section  301.  Extent  of  Surety's  Liability. 

302.  Liability  of  Surety  for  Previous  Defaults  of  Officer. 

303.  Presumption  as  to  Sureties  on  Second  Bond. 

304.  De  Facto  Officers, 

305.  Officers  Holding  Over. 

306.  Death  of  Officer. 

307.  Money  Used  to  Cover  Previous  Delinquencies. 

308.  Giving  Second  Bond  in  Same  Term. 

309.  Giving     Bond     without     Statutory     Authority  —  Non-com- 

pliance with  Statute. 

310.  General  and  Special  Bonds  Given  by  an  Officer. 

311.  Sureties  are  Liable  Only  for  Their  Principal's  Official  Acts. 

312.  Subsequently  Imposed  Duties. 

313.  Subsequently  Imposed  Duties  by  the  Legislature. 

314.  The  State  is  not  Responsible  for  Its  Officers'  ActS. 

315.  Forgery  of  Prior  Surety's  Name. 

316.  Money  Lost  or  Stolen  from  Principal. 

317.  Depositing  Public  Money  in  Bank. 

318.  Making  Profits  on  Public  Funds. 

319.  Interest  Recovered  After  Breach. 

320.  Liability  of  Sureties  as  to  Payment  of  Penalties; 

321.  Estoppel  by  Judgment. 

321a.  Construing  Bonds  with  Reference  to  Statute. 

322.  Sheriffs  and  Constables. 

323.  Scope  of  Liability. 

324.  Levying  on  a  Stranger's  Property  and  on  Property  Exempt. 

325.  Officers  Liable  for  Ministerial  Duties. 
320.  Duty  to  Indidivuals  and  to  the  State. 
327.  Amount  of  Sureties'  Liability. 


XIV 


Table  of  Contents. 


Section  328. 
329. 
330. 
331. 

332. 
333. 
334. 
335. 
336. 
337. 
338. 


Section  339. 
340. 
341. 
342. 
343. 
344. 
345. 
346. 

347. 
348. 
349. 
350. 
351. 
352. 
353. 
354. 
355. 
356. 
357. 
358. 
359. 
360. 
361. 
362. 
363. 
364. 
365. 
366. 

367. 
368. 
369. 


Liability  of  Sureties  After  Term  Expires. 

Sureties'  Liability  on  Bonds  of  Clerks  of  Court, 

Compensation  of  Clerks. 

Failure  to   Pay   Over  to   Successor  in   Office  or  to  Proper 

Party. 
Money  Paid  Into  Court  or  by  Order  of  Court. 
Delinquencies  of  Clerks. 
Sureties  of  Justices  of  the  Peace. 
Police  Ollicers. 
Sureties  of  Notary  Public. 
Tax  Collector. 
Subrogation  of  Sureties  on  Official  Bond, 

CHAPTER  XIII. 

GUARANTY. 
Definition. 

Classification  of  Guaranties  as  to  Their  Nature. 
Consideration. 
Executory  Consideration. 
Moral  Obligation. 

As  to  Consideration,  Guaranties  are  of  Two  Kinds. 
Guaranties  Where  the  Consideration  is  Entire. 
Guaranty    Where    the    Consideration    Passes    at    Different 

Times  and  is  Separable. 
Indorsement  Before  and  After  Maturity  of  Note. 
Offer  and  Acceptance. 
Guaranty  of  Payment. 
Conditional  Guaranty. 
Guaranty  of  Illegal  Contracts, 
Default  of  Payment  —  Notice  to  Guarantor, 
Notice  of  Default, 
Continuing  Guaranty. 

Letters  of  Credit  May  Be  a  Continuing  Guaranty, 
Construction  of  Contract. 
Negotiability  of  a  Guaranty. 
Negotiabilty  of  a  Guaranty  Under  Seal. 
Guaranty  of  Collection, 
What  is  Due  Diligence. 
Discharge  of  Guarantor. 

Discharge  by  Change  in  the  Principal  Contract. 
Discharge  by  Extension  of  Time. 

Discharge  by  Release  or  Negligent  Loss  of  Securities. 
By  Fraud  and  Duress. 
Guaranty  Covers  Defects  in  the  Original  Contract  —  Failure 

of  Consideration. 
Revocation  of  a  Continuing  Guaranty. 
Death  of  Guarantor. 
Release  of  Co-guarantor. 


Table  of  Contents. 


XV 


Section  370.     What  Law  Governs. 

371.  Statute  of  Limitations. 

372.  Payment  of  Debt  by  Guarantor. 

CHAPTER  XIV. 


Section  373. 
374 
375 
376 
377 
378 
379 

380 
381 
382 
383 
384 
385 
386 
387 
388 
389 
390 
391 
392 
393 
394 
395 
396 
397 
398 
399 
400 
401 


Section  402. 
403. 

404. 
405. 
406. 
407. 
408. 
409. 


GUARANTY   WITHIN   THE   STATUTE   OF   FRAUDS. 

Fourth  Section  of  the  Statutes  of  Frauds. 

When  the  Promise  is  Within  the  Statute, 

Effect  of  the  Statute  of  Frauds. 

Principal  Debtor  —  Incapacity  to  Contract. 

New  Consideration. 

Consideration  for  Promise. 

Third  Party  Taking  Debtor's  Property  —  Agreement  to  Pay 
Creditor. 

If  Third  Person  is  Not  Liable. 
.     Original  Consideration. 
.     Oral  Promise  to  Indemnify  Another. 

Indemnity  Contracts  in  General. 
.     What  is  a  Sufficient  Consideration. 

Novation. 
.    Promise  to  Pay  the  Debt  of  Another  —  Statute  of  Frauds. 
.     Promise  to  the  Debtor  to  Pay  His  Debt. 
.     To  Whom  Credit  is  Given. 
.     Indorsing  and  Executing  Notes  for  Another. 
.     Assignment  of  Promissory  Notes. 

Agreement  to  Pay  Debt  of  Contractor. 
.     Relinquishment  of  a  Lien. 

Promise  to  Perform  the  Obligation  of  Another  Person. 
.     Del  Credere  Contracts. 
.     To  Whom  the  Promise  Must  Be  Given. 
.     Contract  for  the  Benefit  of  the  Promisor. 

Special  Promise  —  When  Original  Debtor  is  Released. 

Sale  of  Goods  —  Liability  of  Third  Person. 

Joint  Liability. 

Oral  Contract  of  Insurance. 
.     To  Answer  for  the  Torts  of  Another. 

CHAPTER  XV. 

BAIL. 

Bail  Defined. 

Distinction  Between  Bail  and  Mainpernors. 

Arrest  in  Civil  Action. 

Obligation  of  Bail. 

Rights  of  Bail. 

Extent  of  Liability. 

Discharge  of  Principal  in  Bankruptcy  or  Insolvency. 

Payment  by  Imprisonment  of  Principal. 


x\i  Table  of  ContentSo 

Section-  410.  Different  Sets  of  Sureties. 

411.  Exoneration  of  Bail. 

412.  Exoneration  by  Performance  of  Condition. 

413.  Bail  in  Criminal  Cases. 

414.  Rights  and  Liabilities  of  Bail. 

415.  Implied  Contract  of  Indemnity  to  Bail. 

416.  Express  Contract  of  Indemnity  to  Bail. 

417.  Extent  of  Sureties'  Liability. 

418.  Costs. 

419.  Joint  and  Several  Liability  of  Sureties. 

420.  Effect  of  Pardon. 

421.  Delivery  of  Principal  by  Bail  to  Proper  Officer^ 

422.  Bail  on  Appeal. 

423.  Appearance  of  Principal. 

424.  Re-arresting  Principal  on  the  Same  Charge. 

425.  Giving  a  New  Bond. 

426.  Arresting  Principal  on  Different  Charge. 

427.  Sureties  are  Released  by  a  Change  of  Their  Obligation. 

428.  Exoneration  of  Bail  by  Act  of  God. 

429.  Exoneration  by  Act  of  Law^. 

430.  Exoneration  by  Act  of  Obligee. 

431.  Exoneration  of  Sureties  in  General. 

432.  Subrogation  in  Criminal  Cases. 

433.  Forfeiture  of  Bond. 

434.  Setting  Aside  Forfeiture. 

435.  Voluntary  Appearance  or  Arrest  After  Forfeiture  —  Costs. 

436.  Effect  of  Remission  of  Forfeiture. 

437.  Taking  Money  in  Lieu  of  Bail. 

CHAPTER  XVI. 


Section  43S. 
439. 
440. 
441. 
442. 

443. 

444. 

445. 
446. 
447. 
448. 

440. 


SURETY    COJIPANIES. 

Statutes  Affecting  Surety  Companies. 

Statute  Cannot  Fix  Rate  Company  May  Charge. 

Penalty  Statute  —  Surety  Company  —  Construction  of. 

Foreign  Surety  Companies. 

Rule  that  Surety  a  Favorite  of  the  Law  not  Applicable  to 
Surety  Companies. 

Surety  Company  Contract  Treated  Similar  to  Insurance 
Contract. 

Surety  Contracts  Treated  as  Insurance  Contracts  —  Appli- 
cation of  Principle  to  Agents  —  Premiums. 

Surety  Bond  and  Application  Construed  Together. 

Surety  Company  and  Agent  —  Apparent  Scope  of  Authority. 

Surety  Company  and  Agent  —  Written  Authority. 

Notice  to  Company  of  Default  —  Provision  as  to  Construed 
—  Waiver. 

Where  Company  Succeeds  to  Assets  of  Anotlier  Company. 


THE    LAW 


OF 


Suretyship  and   Guaranty. 


CHAPTER  I. 

NATURE  AND  EFFECT. 


Section  i.    Principal, 

2.  Surety. 

2a.  Rights  of  Surety  to  Indemnity. 

2b.  Contract  to  Pay  Anottier  to  Act  as  Surety. 

3.  Co-surety. 

3a.  Terms  "  Guarantor  "  and  "  Surety  "  Generally, 

4.  Distinction  between  Suretyship  and  Guaranty. 

5.  How  Created. 

6.  Nature  of  Surety's  Liability. 

7.  Ignorance  of  Co-surety's  Obligation. 

8.  Substitution  of  Sureties. 

9.  Successive  Bonds. 

10.  Agreement  as  to  Liability  Among  Sureties. 

11.  Grantee  of  Mortgaged  Premises. 

12.  Rights  of  ^Mortgagee  —  In  Equity  or  in  Law. 

13.  The  Mortgagee  Must  Assent. 

14.  Accommodation  Indorser. 

15.  The  Acceptor  of  Drafts. 

16.  Indorser  of  Notes. 

17.  Notes  Payable  to  Maker. 

18.  Pledging  or  Mortgaging  Property  to  Secure  Debt  of  Another 

Person. 

19.  Mortgaging  of  Wife's  Separate  Property  to  Secure  the  Debts 

of  Her  Husband. 

20.  Dissolution  of  Partnership  —  One  or  More  Partners  Assuming 

Partnership  Debts. 

21.  Partners  or  Principals  Agreeing  Among  Themselves  —  Effect 

on  Creditors'  Rights. 

22.  Joint  Contract. 

23.  Joint   Executors   and  Administrators. 

Sec,  I.  Principal, — The  principal  is  the  debtor  who  is  prim- 
arily liable.  He  is  primarily  ooneemed  and,  therefore,  cannot  be 
an  accessory  or  ancillary.     The  contract  of  indebtedness  is  made 


§  2  SuRi':TYSinp  and  Guaranty.  2^ 

by  the  principal,  who  is  liable  to  pay  the  debt,  though  the  surety 
is  also  liable.  They  can  in  most  States  be  sued  jointly  or  severally. 
But  the  obligation  of  the  surety  is  to  the  creditor  or  obligee,  and 
not  to  the  principal;^  and  the  liability  of  the  surety  cannot  exceed 
tliat  of  the  principal.^  The  surcity  is  liable  to  the  obligee  or  cred- 
itor to  the  same  extent  as  the  principal,  and  such  liability  need  not 
bo  tixed  by  judgment.^ 

At  common  law  a  principal  and  surety  could  be  joined  as  parties 
defendants  only  in  an  action  where  their  undertaking  was  joint  or 
joint  and  several.''  But  now  in  most  of  the  States  they  can  be 
sued  jointly  or  severally  whotlier  their  undertaking  is  joint  or  sev- 
eral. 

§  2.  Surety. — A  person  who  engages  to  be  answerable  for  the 
debt,  defaidt  or  miscarriage  of  another  is  a  surety.  He  under- 
takes to  pay  the  debt  if  the  principal  does  not.^    He  is  an  insurer 

1.  Benjamin  v.  Ver  Nooy,  36  App.  Indiana. — Young  v.  McFadden,  125 
Div.   (N.  Y.)   581,  55  N.  Y.  Supp.  796.    Ind.  254,  25  N.  E.  284. 

Where  one  of  two  joint  sureties  is  Iowa. — Pitkins     v.     Boyd,     4     G. 

absent  from  the  State  and  without  Greene,  255. 

the  jurisdiction  of  the   court,  it  is  Maine. — Read   v.   Cutts,   7   Greenl. 

not  necessary  to  make  him  a  party  186,  22  Am.  Dec.  184. 

to  a  suit  on  the  joint  contract  to  re-  Michigan. — Roberts     v.     Hawkins,, 

cover   a  personal   judgment.     Tally  70  Mich.  566,  38  N.  W.  575;  Smith  v. 

V.  Ganahl,  151  Cal.  418,  90  Pac.  1049.  Shelden,   35   Mich.   42,   24   Am.   Rep. 

2.  United    States    v.    Allsburg,    4  529. 

Wall.  (U.  S.)  186,  18  L.  Ed.  321.  Minnesota. — Hammel     v.     Beards- 

3.  Kroncke  v.  Madsen,  56  Neb.  ley,  31  Minn.  314,  17  N.  W.  858;  Cas- 
609,  77  N.  W.  202;  Judge  of  Probate  san  v.  Maxwell,  39  Minn.  391,  40  N. 
V.    Sulloway.   68   N.    H.   511,   44   Atl.  W.  358. 

720.  New       Hampshire. — Watriss       v. 

4.  People  V.  Miller,  2  111.  83;  Cast-   Pierce,  32  N.  H.  560. 

ner   v.    Slater,   50   Me.   212;    Lee   v.       North     DaI[ota. — Northern     State 
Bolles,  20  Mich.  46.  Bank   of   Grand    Forks   v.    Bellamy 

5.  Mcintosh-Huntington     Co.     v.    (1910),  125  N.  W.  888. 

Reed,  89  Fed.  464.  Ohio.— Wise  v.  Miller,  45  Ohio  St. 

Surety  defined,  see:  388,  14  N.  E.  218. 

Alabama. — Mobile  &  O.  R.  Co.  v.  Oregon. — Hoffman    v.    Habighorst, 

Nicholas,  98  Ala.  92,  12  So.  723.  38  Ore.  261,  63  Pac.  610,  53  L.  R.  A. 

ralifornia.— Sather  Banking  Co.  v.  908. 

Briggs  Co.,  138  Cal.  724,  72  Pac.  352.  Texas.— Magill  v.  Brown  Bros.,  20 

Dakota.— Kennedy     v.     Falde,     4  Tex.  Civ.  App.  662,  50  S.  W.  642. 
Dak.  319.  29  N.  W.  667. 


3  Nature  and  Effect.  §  2 

of  the  debt.^  The  surety  assumes  to  perform  the  contract  of  the 
principal  if  he  should  not,  and  if  the  act  which  the  surety  under- 
takes to  perform  through  the  principal  is  not  done,  then  the  surety 
is  liable  at  once.^  An  offer  in  writing,  however,  to  stand  security 
upon  a  contract  afterward  to  be  made  will  not  render  one  liable 
as  surety.^ 

A  surety  is  usually  bound  with  his  principal  by  the  same  in- 
strument, executed  at  the  same  time  and  with  the  same  considera- 
tion. He  is  an  original  promisor  and  debtor  from  the  beginning, 
and  must  know  every  default  of  his  principal.  He  is  bound  with 
and  for  another,  who  is  primarily  liable,  and  who  is  called  the 
principal.  The  surety  engages  to  answer  for  another's  appear- 
ance in  court,  or  for  his  payment  of  a  debt,  or  for  tlie  performance 
of  some  act.^ 


Utah. — Gagan  v.  Stevens,  4  Utah 
348,  9  Pac.  706. 

Yirginia. —  Sherman's  Am'r  v. 
Shaver,  75  Va.  1. 

West  Virginia. — Johnson  v.  Young, 
20  W.  Va.  614. 

See  8  Words  and  Phrases,  p.  6809 
et  seq. 

Surety  for  the  peace  is  one  of  the 
branches  of  preventive  justice  and 
consists  in  obliging  those  persons, 
of  whom  there  is  probable  ground  to 
Buspect  of  future  misbehaviour,  to 
stipulate  to  give  full  assurance  to 
the  public  that  such  olfense  as  is 
apprehended  shall  not  happen,  by 
finding  pledges  or  securities  for 
keeping  the  peace.  Hyde  v.  Grench, 
62  Md.  577,  582.  Per  Miller,  J., 
citing  4  Blackstone  Comm.  251. 

Suretyship  defined,  see: 

United  States.  —  Mcintosh-Hunt- 
ington Co.  V.  Reed,  89  Fed.  464. 

Alabama. — State  v.  Parker,  72 
Ala.  181. 

Arkansas. — Ringgold  v.  Newkirk, 
3  Ark.  96. 

Indiana. — Woody  v.  Haworth,  24 
Ind.  App.  634,  57  N.  E.  272;  Thorn- 


burg  V.  Allman,  8  Ind.  App.  531,  35 
N.  E.  1110. 

Louisiana. — Payne  v.  Cusimano,  50 
La.  Ann.  361,  23  So.  361. 

Oregon.— Hoffman  v.  Habigborst, 
38  Ore.  261,  63  Pac.  610,  53  L.  R.  A. 
908. 

PennsylTania.—  Allegheny  County 
Light  Co.  V.  Reinhold,  21  Pa.  Co.  Ct. 
118. 

Question  of  law,  whether  person 
signed  as  surety.  Gates  v.  Morton 
Hardware  Co.,  146  Ala.  692,  40  So. 
509. 

Parol  cTldence  admissible  to  show 
that  one  who  appears  by  the  terms 
of  an  instrument  to  be  a  principal 
was  in  fact  a  surety.  National  Bank 
of  Commerce  v.  Schirm,  3  Cal.  App. 
696,  86  Pac.  981. 

See  §  171  herein. 

6.  Northern  State  Bank  of  Grand 
Forks  V.  Bellamy,  19  N.  D.  509,  125 
N.  W.  888;  Kramph  v.  Hatz,  52  Pa. 
St.  525. 

7.  Reigart  v.  White,  52  Pa.  St.  438. 

8.  Teasley  &  Co.  v.  Ray,  9  Ga. 
App.  649,  72  S.  E.  43. 

9.  Surety  is  an  original  promisor. 


§§  2a,  2b,  3         Suretyship  and  Guaranty.  ■^ 

§  23.  Right  of  Surety  to  Indemnity. — The  surety  has  a  right 
to  b©  protected  by  his  principal,  and  can  enforce  that  right  when 
the  principal  is  financially  responsible.^* 

A  surety  is  a  person  who,  ibeing  liable  to  pay  a  debt  or  perform 
an  obligation,  is  entitled,  if  it  is  enforced  against  him,  to  be  in- 
demnified by  some  other  person,  who  ought  himself  to  have  made 
payment  or  performed  the  obligation  before  the  surety  was  re- 
quired to  do  so.^^ 

"  One  of  the  essential  elements  of  the  contract  of  suretyship  is 
the  equity  of  'the  surety,  which  depends,  not  so  much  on  his  rela- 
tions with  tJie  creditor,  as  on  his  right  to  indemnity  from  his  prin- 
cipal, and  the  consequent  obligation  on  the  part  of  the  creditor  not 
to  do  any  act  by  which  'this  right  might  be  prejudiced."  ^^ 

One  who  signs  a  note  as  surety  for  another  becomes  a  creditor 
of  the  latter  at  the  time  he  signs  the  note  and  not  at  the  time  that 
ihe  pays  it.^^ 

§  2b.     Contract  to  Pay  Another  to  Act  as  Surety. — A  contract 

botween  parties  by  which  one  agrees  to  pay  another  to  assume  the 
obligation  of  a  surety  for  tihe  former  may  be  entered  into.  Such 
la  contract  is  founded  upon  a  good  consideration  and  is  lawful." 

In  fact,  a  large  proportion  of  the  surety  contracts  at  the  present 
^ate  are  between  parties  one  of  whom  has,  for  an  agreed-upon 
remuneration,  assumed  the  obligation  of  surety. 

§  3.  Co-surety. — Persons  are  co-sureties,  so  as  to  give  the 
right  of  contribution,  when  they  are  bound  for  the  performance, 
iby  the  same  principal,  of  'the  same  ohligation,  and,  whether  they 
become  so  at  the  same  time  or  at  different  times  by  one  or  several 

Northern  State  Bank  of  Grand  Forks  App.   463 ;    Fritch  v.  Citizens'  Bank, 

V.  Bellamy,  19  N.  D.  509,  125  N.  W.  191  Pa.  St.  283,  43  Atl.  394. 

888.  11.  Reissans    v.    Whites,    128    Mo. 

The     principal     and     surety     are  App.  135,  106  S.  W.  603. 

bound     by     the     same     instrument,  12.  Reeves  &  Co.  v.  Jowell   (Tex. 

while  the   principal    does  not   ordi-  Civ.  App.   1911),  140  S.  W.  364,  per 

narily  join   in   the   contract   of   the  Hall,  J. 

guarantor.       Surety     insures     debt,  13.  Griffin    v.    Long,    96    Ark.    268, 

guarantor    solvency    of    the    debtor.  131  S.  W.  672. 

New    Times    Pub.    Co.    v.    Doolittle  See  §  162  herein. 

(Colo.,  1911),  118  Pae.  974.  14.  Givens  v.  Gridley,  32  Ky.  Law 

10.  Roberts    v.    Trust   Co.,   83    111.  Rep.  825.  106  S.  W.  1192. 


& 


Natuke  and  Effect. 


instrumeints,  even  if  they  are  bound  in  different  sums,  or  if  each 
is  ignorant  that  the  others  are  sureties — ^does  not  affect  the  relation 
nor  the  right.  Thus,  where  a  party  is  surety  for  $2,000,  and  an- 
other party  becomes  surety  for  $1,000  for  the  same  debt  by  the 
same  principal  and  has  to  pay  that  amount,  he  may  have  con- 
tribution from  the  ffrst  surety,  who  is  ignorant  of  the  second  con- 
tract of  surety,  it  being  at  a  different  time  and  by  a  different  in- 
strument.^''   But  this  doctrine  does  not  hold  where  the  obligations 


-Galson   v.   Brand,   75 


-Warner  v.  Morri- 
V.    Shunt,    30 
Boyd,  60  Ohio 
Sacchi, 


15.  lUinois.- 

111.  148. 
Massachusetts.- 

son,  3  Allen  566. 

Minnesota. — Young 
Minn.  503. 

Ohio. — Robinson  v. 
St.  57,  53  N.  E.  494. 

New   York. — Aspinwall   v. 
57  N.  Y.  331. 

Virginia. — Rosenbaum  v.  Good- 
man, 78  Va.  121. 

England. — Bllesmere  Brewing  Co. 
V.  Cooper  (1896),  2  Q.  B.  75;  Deering 
V.  Winchelsea,  1  Cox  318. 

See  §  203  herein. 

Presumption  that  sureties  are  co- 
sureties. 

California. — See  Kellogg  v.  Lopez, 
145  Cal.  497,  78  Pac.  1056,  holding 
that  the  form  of  the  instrument  may- 
be disregarded  in  equity. 

Indiana. — Houck  v.  Graham,  106 
Ind.  195,  6  N.  E.  594,  55  Am.  Rep. 
727   (sureties  on  note). 

Maine.— Crosby  v.  Wyatt,  23  Me. 
156  (sureties  on  note:  character  in 
which  parties  signed  presumed  to 
be  correctly  exhibited  by  the  note) . 

Massachusetts. — Weeks  v.  Par- 
sons, 176  Mass.  570,  58  N.  E.  157 
(sureties  on  note:  holding  it  unnec- 
essary that  there  should  be  a  con- 
tract in  so  many  words  to  sign  as 
co-sureties). 

See  Chaffee  v.  Jones,  19  Pick.  260, 
holding  one  who  signed  a  note  be- 


fore it  was  negotiable  to  be  an  origi- 
nal promisor  and  surety,  and  sign- 
ing the  note  in  that  character  to 
have  his  remedy  against  tne  other 
sureties,  whether  they  knew  of  his 
becoming  surety  or  not. 

Nebraska, — Eisley  v.  Horr,  42  Neb. 
3,  60  N.  W.  365   (sureties  on  notes). 

New  York. — See  Coburn  v.  Whee- 
lock,  34  N.  Y.  440  (sureties  on  notes: 
holding  legal  effect  of  contract  to  be 
that  each  was  liable  for  the  whole 
amount  of  the  note  and  liable  to  the 
one  paying  for  his  proportionate 
share,  equally  with  the  others,  there 
being  no  arrangement  altering  this 
liability). 

North  Carolina. — Smith  v.  Carr, 
128  N.  C.  150,  38  S.  E.  732  (sureties 
on  note). 

Vermont. — Flanagan  v.  Post,  45 
Vt.  246    (sureties  on  note). 

Washington. — Caldwell  v.  Hurley, 
41  Wash.  296,  83  Pac.  318  (sureties 
on  corporation  note). 

Presumption  that  sureties  are  not 
co-sureties. 

Alabama. — Moody  v.  Findley,  43 
Ala.  167,  holding  must  be  some 
agreement,  express  or  implied,  to 
render  them  liable  as  co-sureties. 

Indiana. — Knopf  v.  Morel,  111  Ind. 
570,  13  N.  E.  51,  holding  endorser  of 
note  not  presumed  to  be  co-surety  of 
one  who  signs  as  maker,  but  that 
parol  evidence  is  admissible  to 
prove  that  he  did  so  sign. 


§  3a 


Suretyship  and  Guakanty. 


aro  for  wliolly  distinct  things,  though  arising  from  'the  same  prin- 
cipal indebtedness ;  where  the  obligations  have  no  relation  to  nor 
operation  npon  one  another,  thougih  they  arise  from  the  same  prin- 
cipal indebtedness,  the  parties  are  not  co-sureties.  Thus  A,  B  and 
C  are  sureties  on  D's  bond.  D  makes  default,  judgment  is  ren- 
dered against  him  and  an  execution  is  levied  on  his  goods.  He 
gives  a  forthcoming  bond,  signed  by  A  and  B  as  sureties.  A  second 
default  is  made  by  1)  on  this  forthcoming  bond,  and  A  paid  the 
amount  and  then  endeavored  to  have  contribution  from  C,  who  waa 
on  the  original  bond,  hut  not  on  the  forthcoming  bond.  Here  the 
obligations  are  not  the  same,  as  C  is  not  A's  co-surety.^^ 

§  3a.     Terms    "  Guarantor "    and    "  Surety  "    generally. — The 

tenns  "  guarantor  "  and  "  surety  "  are  often  used  indiscriminately 
as  meaning  the  same  person,  without  any  reference  to  the  technical 
distinction  between  Ihem."    And  in  a  case  in  Georgia  it  is  said : 


North  Carolina.— Smith  v.  Smith, 
16  N.  C.  173,  holding  that  where  A, 
as  surety,  signed  the  note  of  B,  pay- 
able to  C,  and  it  was  endorsed  by 
C  at  the  request  and  for  the  accom- 
modation of  B,  there  being  no  con- 
tract between  A  and  C  whereby  they 
agreed  to  become  co-scureties  of  B, 
A  had  no  right  of  contribution  from 
C. 

Rhode  Island. — See  Chapman  v. 
Pendleton,  26  R.  I.  573,  59  Atl.  928, 
holding  that  an  agreement  to  be- 
come co-sureties  may  be  either  oral 
or  written. 

Tennessee. — See  Stacy  v.  Rose, 
(Ch.  App.  1900),  58  S.  W.  1087,  hold- 
ing that  the  payee  of  a  note  whose 
name  stands  as  first  endorsee  there- 
on cannot  recover  of  parties  whose 
names  stand  as  subsequent  en- 
dorsers thereon,  the  amount  paid  by 
him  In  satisfaction  of  the  note  with- 
out averment  and  proof  of  the  facts 
showing  that  the  subsequent  in- 
dorsers  are  as  to  him  in  fact  joint 
makers  or  guarantors  of  the  note. 


16.  National  Surety  Co.  v.  United 
States,  123  Fed.  294,  59  C.  C.  A.  479; 
Hutchinson  v.  Roberts,  8  HousL 
(Del.)  459,  17  Atl.  1061;  Lacy  v.  Rol- 
lins, 74  Tex.  566,  12  S.  W.  314;  Har- 
rison v.  Lane,  5  Leigh  (Va.)  414; 
Langford  v.  Perrin,  5  Leigh  (Va.) 
552;  Rosenbaum  v.  Goodman,  78  Va. 
121. 

See  §  203  herein. 

17.  Watriss  v.  Pierce,  32  N.  H.  560; 
Hall  v.  Weaver,  34  Fed.  104. 

Term  "  guarantee  "  construed  as 
oriiarinal  promise. 

Though  the  term  "  guarantee " 
may  be  used  in  a  writing,  yet  the  ob- 
ligation assumed  may  be  construed 
as  being  an  orignal  promise  and  not 
a  guaranty.  Thus,  where  a  trustee 
became  insolvent  and  his  bondsmen 
agreed  to  "  guarantee  to  pay  as  the 
same  becomes  due  all  assessments 
and  premiums "  necessary  to  con- 
tinue in  force  a  policy  of  insurance 
which  had  been  assigned  to  secure 
the  payment  of  notes  executed  to 
cover    his    indebtedness,    the    word 


7i  Natuee  and  Effect.  §  4: 

^*  We  have  little  sympathy  with  artificial  distinctions  between  prin- 
ciples of  law  which  present  no  substantial  difference  as  to  matters 
of  right  and  justice,  whioh  tend  to'  confuse  rather  than  to  en- 
lighten, and  to  furnish  loopholes  for  technical  escapes  from  con- 
tract obligations.  The  important  question  in  the  case  now  under 
consideration  is  whether  the  writing  is  a  valid  written  obligation, 
it  being  wholly  immaiterial,  in  determining  this  question,  whether 
the  maker  of  the  obligation  is  bound  as  surety  or  guarantor/'  ^* 

"  In  a  technical  and  limited  sense  a  surety  is  a  co-promisor  or 
co-obligor,  but,  in  the  more  general  and  usual  sense,  a  surety  is  one 
who  undertakes  to  answer  for  any  debt  or  default  of  his  principal 
without  regard  to  the  special  character  or  the  special  designation 
given  to  the  contract  or  undertaking  of  the  principal.  lA  guarantor, 
also,  in  a  striot  sense,  is  one  whose  lia!bilities  are  in  general  less 
than  those  of  a  surety  and  they  d(^end  upon  more  technical  rules. 
But  in  an  enlarged  sense,  a  guaranty  is  a  promise  to  answer  for 
the  payment  of  some  debt  or  the  performance  of  some  duty,  in 
case  of  the  failure  of  another  person,  who  in  the  first  instance  is 
liable."  '' 

§  4.  Distinction  Between  Suretyship  and  Guaranty. — The  dis- 
tinction between  the  obligation  of  suretyship  and  guaranty,  is  that 
the  surety  undertakes  to  pay  if  the  principal  does  not;  while  the 
guarantor  undertakes  to  pay  if  the  principal  cannot ;  that  is,  if  he 
is  insolvent  and  unable  to  pay.^^    "  A  '  contract  of  suretyship  '  is  a 

"  guarantee "     was     bo     construed.  18.  Small    Co.    v.    Claxton,    1    Ga. 

Merritt  v.  Haas  (Minn.  1911),  129  N.  App.  83,  57  S.  E.  977.     See  also  Con- 

W.  379.  Bolidated  Portrait  and  Frame  Co.  t. 

And,  likewise,  a  similar  construe-  Claxton,  1  Ga.  App.  809,  57  S.  E.  980. 

tion   was   given   where  an   executor  19.  Watriss  v.  Pierce,  32  N.  H.  560, 

"  guaranteed  "  payment  for  materials  per  Eastman,  J.,  citing  3  Kent  Com. 

furnished    the    estate.      Bossert    v.  121. 

Striker,  142  App.  Div.  (N.  Y.)  5,  126  20.  Mcintosh-Huntington     Co.     r. 

N.  Y.  Supp.  726.  Reed,  89  Fed.  464;  Kramph  v.  Hatz, 

Again   an   indorsement  of  a  note  52  Pa.  St.  525. 

"  For  value  received  we  hereby  guar-  See  §  339. 

antee   the   prompt   payment   of   the  As   to   the   distinction   between    a 

within  note  "  was  held  to  render  the  guarantor  and  surety,  it  is  said  in  a 

indorsers    liable    as    sureties.      Iron  case  in  Georgia:    "In  brief,  we  un- 

City  National  Bank  v.  Rafferty,  207  derstand  the  difference  to  be  this:  A 

Pa.  St.  238,  56  Atl.  445.  surety  binds  himself  to  perform,  if 


§  4  Suretyship  and  Guakanty.  8 

contract  bv  which  the  surety  becomes  bound  as  the  principal  or 
original  debtor  is  bound.  It  is  a  primary  obligation.  The  surety 
is  bound  with  his  ])rincipal  as  an  original  promisor.  On  the  other 
hand  the  '  contract  of  a  guarantor  '  is  his  own  separate  contract ;  it 
is  in  the  nature  of  a  warranty  by  him  that  the  thing  guaranteed  to 
be  done  by  the  principal  shall  be  done.  The  guarantor  has  to  an- 
swer for  the  consequences  of  the  principal's  default.  A  '  surety  ' 
is  an  insurer  of  the  debt.  A  '  guarantor  '  is  an  insurer  of  the  sol- 
vency of  tihe  debtor.  A  surety  may  be  sued  as  promisor  but  a 
guarantor  camiot."  ^^  The  surety  is  directly  liable  to  the  creditor 
for  the  act  to  be  performed,  while  the  guarantor  is  liable  only  for 
the  ability  of  another  to  perform  this  act.  The  undertaking  under 
suretyship  is  immediate  and  direct  that  the  act  shall  be  done ;  if 
not  done,  the  surety  becomes  at  once  responsible.  In  the  case  of 
guaranty,  non-liability  of  the  debtor,  that  is,  his  insolvency,  must 
first  be  shown  before  the  guarantor  becomes  liable.^^ 

In  a  strict  guaranty  the  guarantor  does  not  undertake  to  do  the 
thing  which  his  principal  is  bound  to  do,  but  his  obligation  is  that 
the  principal  shall  perfonn  such  act  as  he  is  bound  to  perform, 
or  in  the  event  he  fails  that  the  guarantor  will  pay  such  damages 
as  may  result  from  such  failure.  iSo  when  there  is  in  any  instru- 
ment a  promise  or  undertaking  on  the  part  of  a  person  executing 
it  to  do  a  particular  thing  which  another  is  bound  to  do,  in  the 
event  such  other  person  does  not  perform  the  act,  it  is  an  original 
undertaking  and  not  a  strict  or  collateral  guaranty.     It  is  an  un- 

the  principal  does  not,  without  re-  guarantor    says    to    him,    '  Proceed 

gard  to  his  ability  to  do  so.    His  con-  first  against  the  principal,  and  if  he 

tract  is  equally  absolute  with  that  should  not  be  able  to  pay,  then  you 

of  his  principal.     They  may  be  sued  may   proceed   against   me.'  "    Manry 

in    the   same   action,    and   judgment  v.  Waxelbaum  Company,  108  Ga.  14, 

may  be  entered  up  against  both.     A  17,  18,  33  S.  E.  701,  per  Cobb,  J. 

guarantor,  on  the  other  hand,  does  An  agreement  to  pay  if  credit  is 

not  contract  that  the  principal  will  extended  in  case  the  one  to  whom 

pay,  but  simply  that  he  is  able  to  do  it  is   extended   does   not,   is  one  of 

so;  in  other  words,  a  guarantor  war-  guaranty.     ShefReld    v.   Whitfield,   6 

rants   nothing   but   the   solvency    of  Ga.  App.  762,  65  S.  E.  807. 

the  principal.     Before  an  action  can  21.  Northern  State  Bank  of  Grand 

be  maintained  against  a  guarantor,  Forks  v.  Bellamy,  19  N.  D.  509,  125 

therefore,  it  must  be  shown  that  the  N.  W.  888,  citing  Ogden,  Negotiable 

principal  is  unable  to  perform.    The  Instruments,  §  220. 

surety  says  to  the  creditor.  '  If  your  22.  Reigart   t.    White,    52    Pa.    St. 

debtor  will  not  pay,  I  will  pay.'   The  440. 


9  Nature  and  Effect.  §  4 

dertaking  in  the  nature  of  a  surety,  and  tlie  person  bound  by  it 
must  take  notice  of  the  default  of  his  principal.^^ 

The  contract  of  a  guarantor  is  collateral  and  secondary ;  that  of 
the  surety  is  direot;  the  guarantor  contracts  to  pay  if  by  the  use 
of  due  diligence  the  debt  cannot  be  made  out  of  the  principal 
debtor,  while  the  surety  undertakes  directly  for  the  payment  and 
is  so  responsible  at  once  if  the  principal  debtor  makes  default."* 
The  surety  is  an  insurer  of  the  deibt,  the  g-uarantor  of  the  solvency 
of  the  debtor.  The  contract  of  the  guarantor  for  collection  is  con- 
ditional on  the  creditor's  diligence  to  collect  the  debt ;  a  mere  de- 
lay will  not  release  a  surety.  To  be  released  the  surety  must  de- 
mand proceedings  with  notice  that  he  will  not  be  bound  if  they  are 
not  instituted.^''  A  guaranteed  contract  of  collection  becomes  ab- 
solute only  by  due  and  unsuccessful  diligence  =tO'  obtain  satisfaction 
from  the  principal  debtor.^^  Thus,  a  delay  of  more  than  two  years 
to  enter  judgment  notes  against  a  failing  debtor  discharges  the 
guarantor. ^^  So  delay  of  eight  years  to  sue  a  note  discharges  the 
guarantor  of  the  debt.^^ 

A  surety  is  in  the  first  instance  answerable  for  the  debt  for 
which  he  makes  himself  responsible ;  his  contracts  are  often  spec- 
ialties ;  while  the  guarantor  is  only  liable  where  default  is  made  by 
the  party  whose  undertaking  is  guaranteed,  and  his  agreement  is 
one  of  simple  contract.  The  surety  is  not  entitled  to  notice,  and  is 
not  discharged  by  the  insolvency  of  the  principal  for  want  of  notice, 
altJiough  the  principal  debtor  was  solvent  when  the  debt  became 
due.  In  regard  to  a  guarantor,  if  the  debt  is  not  paid  at  maturity 
by  the  principal  and  he  is  solvent  at  the  time,  the  guarantor  will 
be  discharged,  if  he  has  not  received  notice,  if  the  principal  shall 
become  insolvent.  The  guarantor  is  entitled  to  notice  within  a 
reasonable  time  that  the  debt  is  not  paid  when  due,  anid  if  not 


23.  Woods  V.  Sherman,  71  Pa.  St.  Guarantor  grnarantees  solyency  of 

100;  Riddle  v.  Thompson,  104  Pa.  St.  principal.    Manry  v.  Waxelbaum  Co,, 

330;  Wright  v.  Griffith,  121  Ind.  478,  108  Ga.  14,  17,  18,  33  S.  E.  701. 

23  N.  E.  281.  26.  Gilbert    v.    Henck,    30    Pa.    St. 

24.  Bailey  Loan  Co.  v.   Seward,  9  205. 

S.  Dak.  326;  Kearnes  v.  Montgomery,  27.  Miller  v.  Berby,  27  Pa.  St.  317. 

4  W.  Va.  29.  28.  Isett  v.   Hoge,  2   Watts.    (Pa.) 

2.'>.  Kramph  v.  Hatz,  52  Pa.  St.  525.  128. 

Surety  insurer  of  debt,  see  §  2. 


§§  5,  6  Suretyship  and  GuAR^vNTy.  10 

notified  lie  will  be  discharged  when  lie  can  show  a  direct  injury  for 
want  of  notice.^^ 

There  is  also  a  distinction  between  guaranty  of  payment  and 
guaranty  of  collection.  A  guaranty  of  payment  is  an  absolute  un- 
oonditional  undertaking  on  the  part  of  the  guarantor  that  the  maker 
will  pay  the  note,  while  a  guaranty  of  collection  is  an  undertaking 
to  pay  if  payment  cannot  by  reasonable  diligence  be  obtained  from 
the  principal  debtor. ^'^  However,  there  are  two  lines  of  decisions, 
which  cannot  be  reconciled,  as  to  guaranty  of  payment,  whether 
absolute  or  conditional.^^ 

§  5.  How  Created. — Suretyship  may  be  created  by  express 
contract  of  the  parties,  or  by  the  operation  of  law.  Where  there 
is  an  express  contract,  the  relation  does  not  exist  when  'the  party 
contracting  is  the  direct  beneficiary,  and  the  contract  is  entered 
into  by  him  for  his  own  benefit,  for  then  he  is  principal  and  not 
surety.^'  There  is  no  diiference  between  a  suretyship  created  by 
law  and  created  by  acts  of  the  parties.^ 

To  make  one  surety  upon  a  note  a  principal  as  to  another  suret^y 
it  has  been  decided  that  it  must  be  shown  that  the  latter  became 
surety  at  his  request.^* 

If  parties  become  sureties  contrary  to  the  wishes  of  the  prin- 
cipal his  relations  will  not  be  altered  tbereby  nor  will  any  new  re- 
sponsibilities ^attach  to  him  in  consequence  of  it.^^ 

§  6.  Nature  of  Surety's  Liability. — Whether  a  surety's  liabil- 
ity is  a  debt  is  a  question  not  answered  the  same.  It  has  been 
held  that  the  obligation  of  a  surety  or  indorser  is  not  a  debt,^^  be- 
cause 'the  liability  is  contingent;  and  it  is  not  a  debt  until  the 

29.  Courtis     v.     Dennis,     7     Met.  81.  See  §  339. 

(Mass.)   510.  32.  Wimberly     v.     Windham,     104 

In  onlor  to  bind  a  surety  gnaran-  Ala.  409,  16  So.  23. 

tjinsr  payment  of  a  check,  it  is  un-  33.  Wyman   v.   Jones,  58  Mo.  App. 

necessary   to   give   him   notice   of   a  313. 

protest  provided  by  Civ.  Code  1895,  34.  Whitehouse  v.    Hanson,   42   N. 

§  3088,  as  to  indorsers  of  notes  and  H.  9. 

bills  of  exchange.    Preston  v.  Dozier  35.  Hughes    v.    Littlefield,    18    Me. 

(Ga.  1910),  68  S.  E.  793.  400.     See  Talmage  v.  Burlingame,  9 

80.  Cowles  V.  Pick,  55  Conn.  251,  Pa.  St.  21. 

10  Atl.  569;   Beardsley  v.  Hawes,  71  36.  May    v.    Hammond,    144    Mass. 

Conn.  39,  40  Atl.  1043.  151,  10  N.  E.  751. 


11  Nature  and  Effect.  §  " 

indorser  is  obliged  to  pay  the  iiote.^^  Hence,  a  surety  on  a  note 
not  yet  due,  before  payment  by  him,  cannot  claim  his  liaibility  as 
a  debt  which  he  may  prove  before  the  assignee  of  his  principal,  nor 
will  he  be  barred  from  his  future  action  against  his  insolvent  prin- 
cipal, who  has  been  discharged  from  bankruptcy."^ 

But  there  is  another  line  of  cases  that  hold  that  a  surety's  lia- 
bility is  a  debt.  .So  a  surety  upon  an  official  bond  is  a  debtor.^*  Be- 
cause the  word  "  debt "  includes  not  only  debts  of  record  or  judg- 
ment, but  also  obligations  arising  under  simple  contracts  to  a  very 
wide  extent;  and  it  includes  all  that  is  due  to  a  man  under  any 
form  of  obligation  or  promise.  Whatever  the  law  orders  any  one 
to  pay,  that  becomes  instantly  a  debt  which  he  has  beforehand  con- 
tracted to  pay.*''  So  a  surety  on  a  note  who  executes  a  mortgage 
to  the  payee  for  securing  payment  of  a  note,  is  a  debtor  entitled 
to  have  the  value  of  the  mortgage  deducted  from  the  whole  debt.*^ 

So  a  devise  to  executors  with  authority  to  sell  real  estate  of  the 
testator  for  the  payment  of  his  debts,  applies  as  well  to  a  joint  and 
several  bond  executed  by  him  as  surety  for  his  co-obligators  to  any 
other  debts.*^  iSo  where  the  condition  in  a  chattel  mortgage  shows 
that  the  mortgage  was  given  to  secure  the  mortgagee  against  liabil- 
ity as  an  indorser  for  the  mortgagor,  the  mortgage  was  given  to 
secure  a  debt  of  the  mortgagor.*^ 

§  7.  Ignorance  of  Co-surety's  Obligation. — It  is  wholly  imma- 
terial that  sureties  sign  at  different  times  and  without  any  agree- 
ment to  become  joint  sureties.  The  law  raised  an  implied  promise 
from  the  mutual  relation  of  the  parties.  Hence,  it  follows  that  it 
does  not  make  any  difference  as  to  the  right  to  claim  contribution 
that  each  of  the  sureties  was  ignorant  tha't  the  other  was  bound 
with  him  for  the  payment  of  the  debt.  Their  liability  exists,  al- 
though they  are  bound  by  distinct  and  separate  instrimients.  It  is 
sufficient  if  they  are  sureties  for  the  same  debt  of  a  third  person.''* 

87.  Frothingham  v.  Haley,  3  Mass.  41.  Lanckton    v.    Wolcott,    6    Met. 

168.  (Mass.)   ?05. 

38.  Paul  V.  Jones,  1  Term  R.  599;  42.  Berg  v.  Radcliff,  6  Johns.  Ch. 
Frost   V.    Carter,    1    Johns.    Cas.    73.  (N.  Y.)  302. 

See,   also.   State   v.   Gambs,   68    Mo.  43.  Gilbert  v.  Vail,  60  Vt.  261,  266, 

289;  Eddy  v.  Heath,  31  Mo.  141.  14  Atl.  542. 

39.  Shane  v.  Francis,  30  Ind.  92.  44.    Massachusetts.—  Chaffee     v. 

40.  Gray  v.  Bennett,  3  Met.  (Mass.)  Jones,  19  Pick.  260. 
522. 


§§  8-10  Suretyship  and  Guaranty.  12 

§  8.  Substitution  of  Sureties. — If  one  set  of  sureties  has  been 
6iibstitnt(Ml  for  others  whose  liability  has  ceased,  the  former  are 
not  liable  on  ihe  last  instrnment.  A  surety  may  pay  and  extinguish 
the  original  obligation  by  his  own  note,  and  then  be  entitled  to 
contribution  if  the  original  obligation  is  paid  and  discharged  by  a 
contribution  from  his  co-sureties;  but  he  would  not  be  entitled  to 
new  note  of  the  principal  and  one  of  the  sureties.''^  Thus,  where 
an  insolvent  principal  and  one  of  several  sureties  execrate  'their  note 
instead  of  a  former  note,  the  surety  upon  such  new  note  cannot 
have  contribution  of  the  old  sureties  on  tJie  old  note.^^ 

§  g.  Successive  Bonds. — "Where  sureties  are  discharged  and 
new  sureties  taken,  the  two  sets  of  sureties  become  jointly  liable 
for  a  breach  of  the  bond  which  accrued  before  discharge,  and  the 
right  of  contribution  exists  as  between  co-sureties.  The  new  bond 
relates  back,  and  the  two  sets  of  sureties  are  jointly  liable  for  a 
breach  committed  prior  to  the  second  execution.'*' 

§  10.  Agreement  as  to  Liability  Among  Sureties, — Co-sureties 
may,  by  agreement  among  themselves,  so  far  sever  their  unity  of 
interest  and  obligation  as  to  determine  the  right  of  contribution.*^ 
A  surety  has  the  right  to  determine  for  himself  on  what  condition 

Aew  York. — Schram  v.  Werner,  85  47.  California. — Powell   v.   Powell, 

Hun  (N.  Y.)   293,  32  N.  Y.  Supp.  995;  48  Cal.  234. 

National   Surety  Co.   v.   Di   Marsico,  Illinois.— Morley   v.   Metamora,   78 

55  Misc.  R.  302,  105  N.  Y.  Supp.  272.  111.    394;    Pinkstaff  v.    State,   59    111. 

Oliio.— Robinson  v.  Boyd,  60  Ohio  148. 

St.  57,  53  N.  E.  494.  Massachusetts. — Choate  v.  Arring- 

Virginia.— Stovall  v.  Bank,  78  Va.  ton,  116  Mass.  552. 

188.  Missouri. — State    v.     Berning,     74 

England. — Craythorne     v.      Swin-  Mo.  87. 
burne,  14  Ves.  160.  New   York. — Schofield   v.   Church- 
See  §  3  herein  as  to  co-sureties.  ill,  72  N.  Y.  565. 

4-"i„  White  V.  Colton,  52  Ind.  372;  See  §§  9,  168,  209,  herein,  as  to  lia- 

Ballston  v.  Wood,  15  Iowa  160.  bility    to    contribute    on    successive 

See  §§  9,  168,  209,  herein,  as  to  lia-  bonds, 

bility    to    contribute    on    successive  48.  Robertson  v.  Deatharge,  82  111. 

bonds.  511. 

40,  Bell  V.  Boyd,   76   Tex.   133,   13  That  surety  may  limit  his  liability, 

S.  W.  232;   Tittle  v.  Bennett,  94  Ga.  see  §  77, 

4('\  21  S.  E.  62;  Chapman  v.  Garber,  As    to    co-sureties    limiting    their 

46  Neb.  16^  64  N.  W.  362.  liability  in  different  amounts,  see  § 

205. 


13'  Nature  and  Effect.  §   11 

lie  will  become  surety  and  to  fix  the  nature  of  his  liability  as  be- 
tween himself  and  the  prior  maker;  and  by  agreement  be- 
tween him  and  said  principal,  the  liability  of  said  subsequent  signer 
may  be  made  that  of  all  sureties  for  all  the  makers  who  have  signed 
before  him/®  If  one  surety,  instead  of  uniting  with  the  others, 
siigTis  as  surety  for  the  others,  they  have  the  right  of  contribution 
against  him.  His  right  against  tihem  is  not  for  contribution,  but 
for  full  indemnity.^^  And  when  the  old  note  is  superseded  by  a 
new  note  made  by  the  sureties,  which  is  to  be  void  if  the  old  note 
is  paid,  this  is  a  renewal  and  not  an  independent  indebtedness.^^ 

§  II.  Grantee  of  Mortgaged  Premises. — As  between  the 
grantor,  who  is  personally  liable,  and  the  grantee  of  mortgaged 
premises,  the  grantee  assuming  the  indebtedness,  the  grantee  be^- 
comes  the  principal  and  the  grantor,  surety,  a  surety  for  the  pay- 
ment of  the  debt,  with  a  surety's  right. 

The  purchaser  who  assumes  the  payment  of  a  mortgage  by  agrees 
ment  when  he  buys  the  mortgaged  land,  takes  upon  himself  the  bur- 
den of  the  debt  or  claim  secured  by  the  mortgage,  and,  as  between 
iiim  and  the  grantor,  he  becomes  the  principal,  and  the  grantor,  or 
mortgagor,  a  surety  for  tbe  payment  of  the  debt.^^ 

49,  Baldwin  v.  Fleming,  90  Ind.  Kansas. — Stephenson  v.  Elliott,  53 
177.  Kan.  550,  36  Pac.  980. 

50.  McDonald  v.  Magruder,  3  Pet.  Maryland. — George  v.  Andrews,  60 
(U.  S.)   470,  7  L.  Ed.  744;   Hamilton  Md.  26. 

V.  Johnston,  82  111.  39 ;  Paul  v.  Berry,  Massaclinsetts. — Rice   v.    Sanders, 

78  111.  158;  Craythorne  V.  Swinburne,  152   Mass.   108,  24   N.   E.  1079,  8   L. 

14  Ves.  164.  R.   A.   315n. 

61.  Merchants'  Nat.  Bank  of  Clin-  Missouri. — Regan  v.  Williams,  185 

ton  V.  Eyre,  107  Iowa  13,  77  N.  W.  Mo.  620,  84  S.  W.  959;  Pratt  v.  Con- 

498;   Pingrey  on  Mort.,  868,  869.  way,  148  Mo.  291,  49  S.  W.  1028. 

52.  United  States. — Union  Mut.  Life  IVew  Jersey. — Huyler  v.  Atwood,  26 

Ins.  Co.  V.  Hanford,  143  U.  S.  187,  12  N.  J.  Eq.  504. 

Sup.  Ct.  437,  36  L.  Ed.  118.  ]Vew  York.— Ayers  v.  Dixon,  78  N. 

Connecticut.— See      Chapman      v.  Y.  318;  Cairo  v.  Davies,  73  N.  Y.  211; 

Beardsley,  31  Conn.  115.  Comstock   v.   Drohan,   71    N.   Y.   13; 

Illinois. — Webster  v.  Fleming,  178  Wyson  v.  Meyer,  58  App.  Div.  422,  69 

111.  140.  52  N.  E.  975;  Flagg  v.  Gilt-  N.  Y.  Supp  286. 

maker,  98  111.  293.  Oliio.— Poe  v.   Dixon,  60   Ohio  St. 

Indiana.— Oglebay     v.     Todd,     166  124,  54  N.  E.  86. 
Ind.  250,  76  N.  E.  238;  Ellis  v.  John- 
son, 96  Ind.  177. 


§   11  Suretyship  and  Guaranty.  14: 

And  in  such  ease,  if  tlio  mortgage  is  foreclosed  and  tte  land  sold 
to  pay  the  debt,  leaving  unpaid  a  portion  thereof,  which  the  grantor 
pays,  the  latter  cannot  maintain  an  action  for  indemnity  on  the 
recital  in  the  deed,  the  promise  therein  not  running  to  him,  but 
must  resort  to  an  action  on  tihe  implied  promise  of  indemnity  which 
arises  in  every  instance  when  a  surety  pays  the  debt  of  his  prin- 
cipal, as  for  money  paid  for  the  use  of  the  principal.^^  But  as  to 
the  holder  of  the  note  and  mortgage,  both  grantor  and  grantee  are 
principals,  and  are  liable  to  the  creditor  as  such  if  he  so  desires.^^ 

Pennsyhania.— Cook  v.  Berry,  193  suretyship,  but  that  for  the  purpose 
Pa.  St.  '■ill,  44  Atl.  771.  of  working  out  equity   and  justice. 

West  Virgiuia. — Curry  v.  Hale,  15  the  parties  would  be  treated,  in  a 
W.  Va.  867.  court  of  equity,  as  standing  in  a  re- 

Wisconsin. — Palmette  v.  Carey,  63  lation  of  suretyshp.  Burlew,  Adm'r, 
Wis.  426,  21  N.  W.  793,  23  N.  W.  586.    v.    Smith,   68   W.   Va.    458,    69    S.    E. 

See  Pingrey  on  Mortg.,  868,  869.       908. 

Where  the  liability  is  not  assumed  Where  a  person  executes  a  note 
by  the  grantee  he  is  regarded  as  a  and  a  mortgage  to  secure  its  pay- 
surety.  Barnes  v.  Mott,  64  N.  Y.  ment  and  subsequently  sells  the  real 
397;  Magill,  Exec,  v.  Brown  Bros.,  estate  to  one  who  assumes  payment 
20  Tex.  Civ.  App.  662,  50  S.  W.  143,  of  the  note,  the  payee  is  not  bound 
642.  to  look  to  the  vendee  as  the  prin- 

The  purchaser  of  a  part  of  a  tract  cipal  obligor  merely  because  of  a 
of  land  flhich  is  subject  to  a  ven-  notice  to  that  effect  from  the  maker 
dor's  lien,  who  has  purchased  with  of  the  note,  it  not  appearing  that  the 
notice  of  the  lien  and  taken  his  title  payee  in  any  manner  consented  or 
subject  to  it  and  without  covenant  agreed  so  to  do.  Witt  v.  Aurarilla 
against  it,  but  who  has  paid  no  part  National  Bank  (Tex.  Civ.  App.  1911)» 
of  it,  and  is  in  no   way   personally    135  S.  W.  1108. 

liable  for  its  payment,  is  in  no  sense       53.  Arkansas. — Hill   v.  Wright,  2J 
a  surety  for  the  payment  of  the  lien.    Ark.  530. 

Lennig  v.   Harrisonburg  Land  &   I.       Massachusetts. — Appleton  v.   Bas- 
Co.,  107  Va.  458,  59  S.  E.  400.  com,  3  Mete.  169. 

Where  there  was  a  vendor's  lien  New  York. — Homes  v.  Weed,  19 
against  property  which  the  vendee  Barb.  128;  Toon  v.  Goodrich,  2  Johns, 
conveyed  to  another  person  upon  his    213. 

assumption   of  the   purchase  money        Ohio. — Peo  v.  Dio,  60  Ohio  St.  124, 
debt,    and    which    was    subsequently    54  N.  E.  86. 

conveyed  by  said  second  purchaser  England. — Huntley  v.  Sanderson,  1 
to  a  third,  in  consideration  of  money  Cr.  &  M.  467,  2  Barnard  26. 
paid  and  notes  executed  by  such  54.  Jones  v.  Foster,  175  HI.  459, 
third  person,  the  second  purchaser  51  N.  E.  862;  Union  Mut.  Life  Ins. 
covenanting  to  pay  all  taxes,  liens  Co.  v.  Hanford,  143  U.  S.  187,  12  S. 
and  encumbrances,  it  was  held  that  Ct.  437,  36  L.  Ed.  118;  Wilson  v.  Land' 
there    was    no    legal     contract    of 


15 


Nature  and  Effect. 


1^ 


§  12.     Rights  of  Mortgagee — In  Equity  or  in  Law. — At  law  it 

was  formerly  held  that  the  contract  of  assumption  by  the  pur- 
chaser, being  made  with  the  mortgagor  and  for  his  benefit  only, 
creates  no  direct  obligation  of  the  purchaser  to  the  mortgagee.^^ 
But  it  was  held  in  equity  that  the  mortgagee  may  avail  himself  of 
the  right  of  the  mortgagor  against  the  purchaser ;  because  in  equity 
a  creditor  shall  have  the  benefit  of  any  obligation  or  security  given 
by  his  principal  to  the  surety  for  the  payment  of  the  debt.^^ 

In  the  United  States  the  trend  of  the  decisions  is  that  the  legal 
effect  of  the  transaction  is  to  leave  the  portion  of  the  purchase 
money  represented  by  the  incumbrance  in  the  hands  of  the  pur- 
chaser for  the  purpose  of  paying  the  indebtedness;  the  promise 
being  made  for  the  benefit  of  the  holder  of  the  incumbrance,  he  may 
maintain  an  action  at  law  to  enforce  it.  Hence,  the  mortgagee 
may  maintain  an  action  at  law  tO'  enforce  the  contract  of  assump- 
tion of  the  mortgage  debt  by  the  grantee."     And  where  several 


Security  Co.,  26  Can.  Sup.  Ct.  149; 
Forster  v.  Ivey,  32  Ont.  175. 

According  to  the  view  which  pre- 
vails in  Illinois  and  some  other 
States,  a  covenant  to  assume  and 
agree  to  pay  the  mortgaged  debt  by 
the  grantee  is  valid  and  may  be  en- 
forced by  the  mortgagee  against 
him.  But  according  to  the  New 
York  rule,  which  is  followed  in  New 
Jersey  and  some  other  States,  such 
covenant  is  construed  to  be  a  con- 
tract of  indemnity  for  the  benefit  of 
the  grantor,  and  where  there  is  no 
personal  liability  on  the  grantor 
none  passes  to  the  grantee.  For  a 
discussion  of  this  subject,  see  McKay 
T.  Ward,  57  Utah  1024,  57  Pac.  1024. 

55.  Gandy  v.  Gandy,  30  Ch.  Div. 
57,  67;  National  Bank  v.  Grand 
Lodge,  98  U.  S.  123,  124,  25  L.  Ed. 
75. 

56.  Hampton  v.  Phipps,  108  U.  S. 
260,  263,  2  S.  Ct.  622;  Wright  v.  Mor- 
ley,  11  Ves.  12,  22. 

57.  United  States.  —  Union  Mut. 
Life  Ins.  Co.  v.  Hanford,  143  U.  S. 


187,  12  S.  Ct.  437,  36  L.  Ed.  118; 
Keller  v.  Ashford,  133  U.  S.  610,  10 
S   Ct.  494,  33  L.  Ed.  667. 

Kansas. — Anthony  v.  Herman,  14 
Kan.  494. 

Illinois. — Webster  v.  Fleming,  178 
111.  140,  52  N.  E.  870. 

Iowa, — Lamb  v.  Tucker,  42  Iowa 
118. 

Maine. — Bohanan  v.  Pope,  42  Me. 
93. 

Minnesota. — Follanshee  v.  John- 
son, 28  Minn.  311. 

Nebraska. — Keedle  v.  Flack,  27 
Neb.  836,  44  N.  W.  34. 

New  Jersey. — Joslin  v.  Car  Spring 
Co.,  36  N.  J.  L.  141. 

New  York. — Bowen  v.  Beck,  94  N. 
Y.  86;  Calvo  v.  Davies,  73  N.  Y.  211. 

Ohio. — Thompson  v.  Thompson,  4 
Ohio  St.  333. 

Pennsylvania. — Townsend  v.  Long, 
77  Pa.  St.  143. 

Wisconsin. — Bassett  v.  Hughep,  43 
Wis.  319. 

See  Pingrey  on  Mort.  869. 


§§  13,  14      Suretyship  and  Guaranty.  16 

mortgage  debts  are  assumed  each  mortgagee  may  sue  at  law  in  a 
separate  action  for  his  debt.''^ 

§  13.  The  Mortgagee  Must  Assent. — But  the  mortgagee  must 
consent  in  order  to  make  the  grantee  of  the  mortgaged  premises 
liable  as  principal  and  the  mortgagor  surety.  Until  acceptance  by 
the  mortgagee,  there  is  no  privity  of  contract  hetween  him  and  the 
grantee  of  the  mortgaged  premises.^^  So  where  the  grantee  ex- 
pressly promises  to  pay  the  mortgage  debt,  that  alone,  without  the 
assent  of  the  mortgagee,  does  not  change  the  mortgagor  into  a 
surety  merely.^''  Whether  the  remedy  of  the  mortgagee  against  the 
grantee  is  at  law,  and  in  his  own  right,  or  in  equity,  in  the  right 
of  the  mortgagor,  must  be  determined  hy  the  law  of  the  place  where 
the  suit  is  brought.''^ 

§  14.  Accommodation  Indorser. — The  relation  of  an  accom- 
modation indorser  and  the  party  accommodated  is  that  of  principal 

and  surety  as  between  themselves,^^  It  has  been  'held  by  some 
courts  tha't  an  accommodation  indorser  is  not  within  the  statute 
allowing  a  surety  to  require  the  creditor,  in  certain  cases,  to  pro- 
ceed against  the  principal,  or  in  default  thereof  to  lose  his  remedy 
against  the  surety. '^  But  in  other  jurisdictions  'this  rule  is  not 
adopted,  and  an  accommodation  indorser  of  a  promissory  note 
stimds  in  the  relation  of  surety  for  the  maker  for  whose  accom- 
modation he  became  indorser,  within  the  meaning  of  the  statute  in 

58.  Poe  V.  Dixon,  60  Ohio  St.  124,  61.  Union  Mut.  Life  Ins.  Co.  v. 
54  N.  E.  86.  Hanford,  143  U.  S.  187,  12  S.  Ct.  427, 

59.  Commercial  Nat.  Bank  v.  Kirk-    36  L.  Ed.  118. 

wood,    172    111.    563,    50    N.    E.    219;  62.  Hall    v.    Oberhellman,    23    Mo. 

Union  Mut.  Life  Ins.  Co.  v.  Hanford,  App.  336;  Clason  v.  Morris,  10  Johns. 

143  U.  S.  187,  12  S.  Ct.  437,  36  L.  Ed.  (N.   Y.)    524;    Bryant  v.  Rudisell,   4 

118.     See  Webster   v.   Fleming,   178  Heisk.    (Tenn.)    656;    Sublett  v.  Mc- 

111.  140,  52  N.  E.  975.  Kinney,  19  Tex.  438.     See  §  347. 

60.  Shepherd  v.  May,  115  U.  S.  505,  Wife  held  surety  on  husband's 
6  S.  Ct.  119,  29  L.  Ed.  456;  Keller  v.  notes.  Solenberger  v.  Stickler's 
Ajshford,  133  U.  S.  610,  10  S.  Ct.  494,  Adm'r  (Va.),  65  S.  E.  566. 

33  L.  Ed.  667;  Commercial  Nat.  Bank       6,3.  Clark    v.    Barrett,    19    Mo.    39; 
V.  Kirkwood,  172   111.   563,   50   N.  E.    Bootsman's  Sav.  Bank  v.  Johnson,  20 
219,  '184  111.  139,  56  N.  E.  405,  over-    Mo.  App.  316. 
ruling,  in  effect,  on  this  point,  Bay 
V.  Williams,  112  111.  91. 


17  Nature  and  Effect.         §§  15,  16 

relation  to  the  remedies  of  sureties  against  the  principals/'*  And 
a  party  who  indorses  a  note  either  at  the  time  of  its  final  execution 
and  delivery  or  prior  to  any  transfer  thereof  and  before  it  is  put 
into  circulation  is  held  to  be  a  surety  on  the  note  although  he  signed 
it  on  the  back  instead  of  below  the  name  of  the  maker  on  the  face/^ 
Where  a  party  gives  his  accommodation  note  to  another  in  ex- 
change for  a  like  note  of  the  latter  to  him,  he  is  liable  on  his  note 
as  a  principal  and  not  as  a  surety,^®  but  he  may  be  a  surety  as  be- 
tween other  parties/^ 

§  15.  The  Acceptor  of  Drafts. — The  acceptor  of  a  bill  and  the 
maker  of  a  note  are  the  principals,  and  the  indorsers  sureties/*  By 
the  acceptance  of  a  draft,  the  acceptor  becomes,  not  merely  the 
surety  for  the  drawer,  but  the  principal  debtor/* 

§  16.  Indorser  of  Notes. — Each  indorser  upon  bills  of  ex- 
change or  promissory  notes  is  prima  facie  bound  to  indemnify  each 
subsequent  party  to  the  instrument,  and  has  a  right  to  be  indem- 
nified by  each  prior  party  thereto/** 

'A  regular  blank  indorsement  on  a  negotiable  promissory  note 
imports  a  legal  obligation  to  pay  the  note  in  default  of  the  maker, 
after  due  diligence  by  the  holder  and  due  notice  of  the  default  to 
the  indorser  primarily  in  the  first  indorser,  and  successively  in  the 
following  indorsers  in  their  order/^  The  acceptor  or  maker  is  the 
principal  debtor,  and  then  the  drawer  and  indorsers  in  the  order 
in  which  their  names  appear  upon  the  instrument/^ 

An  indorser  of  a  promissory  note,  though  in  the  nature  of  a 
surety,  is  not  entitled  for  all  purposes  to  the  privileges  of  that  ohar- 

64.  Ward  v.  Stout,  32  111  399;  Lacy   v.  Ebers,  1  Barn.  &  Ad.  703;    In  re 
V.  Loftus,  26  Ind.  324;   Thompson  v.    Babcock,  3  Story  (U.  S.)  399. 
Taylor,  72  N.  Y.  32;  Van  Alstyne  v.        69.  Davis    v.    Baker,    71    Ga.    33; 
Sorley,  32  Tex.  518.  Marsh  v.  Low,  55  Ind   271;  Fuller  v. 

65.  Kisslre     v.      Plunkett-Jarrell    Leonard,  27  La.  Ann.  635. 

Grocer  Co.    (Ark.   1912),   145   S.   W.  70.  McDonald  v.  Magruder,  3  Pet. 

567.  (U.  S.)  470,  7  L.  Ed.  744. 

66.  Newmarket  Sav.  Bank  v.  Han-  71.  Sloan  v.  Gibbes,  56  S.  C.  480, 
son,  67  N.  H.  501,  509,  32  Atl.  774.  35  S.  E.  408,  76  Am.  St.  Rep.  559.   Per 

67.  Whitney  v.  Hale,  67  N.  H.  385,  Mr.  Justice  Jones. 

30  Atl.  417.     See  §§  206,  347.  72.  Ross  v.  Jones,  22  Wall.  (U.  S.) 

68.  Diversy   v.   Moor,   22    111.   331;    576,  593,  22  L.  Ed.  730;  Clark  v.  Dev- 
Cornise  v.  Kellog'g,  20  111.  11;  Yallop    lin,  3  Bui.  &  P.  363. 

o 


§§   17,  18  Suretyship  and  Guabanty.  18 

acter,  as  he  is  answerable  upon  an  independent  contract,  and  it  is 
his  duty  to  take  up  a  note  when  it  is  dishonored  J*  There  is,  in 
some  respects,  a  resemblance  between  an  indorser  and  a  surety, 
but  in  oithers  there  is  none,  as  he  does  not  in  any  case  lose  his  char- 
acter of  indorser,  nor  can  he  be  made  liable  on  the  note  without 
proof  of  due  demand  and  notice.^* 

§  17.  Notes  Payable  to  Maker. — By  the  law  merchant  a  party 
indorsing  a  note  payable  to  maker,  who  first  indorses  it,  is  not 
merely  a  surety,  but  an  indorsee,  and  entitled  to  demand  noticeJ^ 

The  Illinois  statute,  which  provides  that  indorsers  of  notes  made 
payable  to  bearer,  shall  be  held  as  guarantors  of  payment,  does  not 
apply  to  notes  payable  to  the  maker's  order  and  by  him  indorsed 
in  blank  ;^®  he  is  only  a  second  indorser,  and  parol  evidence  is  not 
adinissible  to  show  a  different  contract.'^^ 

5<  18.  Pledging  or  Mortgaging  Property  to  Secure  Debt  of  An- 
other Person. — When  a  third  person  pledges  his  property  as  secu- 
ity  for  the  payment  of  a  debt  or  obligation  of  another,  such 
property  will  stand  in  the  position  of  a  surety  of  the  debt."^  This 
rule  also  applies  to  mortgages  made  by  one  person  to  secure  the 
debt  of  another.^^ 

73.  Ellsworth  v.  Brewer,  11  Pick.  78.  Price  v.  Bank,  114  111.  317. 
(Mass.)   320.  79.  Ryan   v.   Shawneetown,   14   111. 

74.  Bradford  v.  Corey,  5  Barb.  (N.  20;  Crawford  v.  Richeson,  101  111. 
Y.)   462.     See  §  347.  351;    Christner    v.    Brown,    16    Iowa 

75.  Field  v.  Newspaper  Co.,  21  La.  130;  Burnap  v.  Bank,  95  N.  Y.  125. 
Ann.  24;  Dubois  v.  Mason,  127  Mass.  See  Townsend  v.  Sullivan,  3  Cal. 
37.  App.  115,  84  Pac.  435. 

76.  Chicago  Trust  &  Sav.  Bank  v.  Husband  held  to  be  surety  for  wife 
Nordgren,  157  111.  663,  42  N.  E.  148.  where  both  executed  a  mortgage  and 

77.  Hately  v.  Pike,  162  111.  241,  44  gave  a  bond  to  secure  payment  for 
N.  E.  441.  work  done  on  wife's  separate  prop- 
As  to  statute  of  frauds.    Where  a  erty.    Brown  v.  Mason,  55  App.  Div. 

person  has  parted  with  title  to  prop-  (N.  Y.)   395,  66  N.  Y.  Supp.  917;   af- 

erty  in  consideration  of  the  promise  firmed  170  N.  Y.  584,  63  N.  E.  1115. 
of  another  to  pay  a  certain  note,  the       Mother  held  to  be  principal  where 

statute  of  frauds  has  no  application,  a    mortgage    was    given    by    her    as 

as    the    debt    thereby    becomes    the  security   for  payment  of  a  loan  to 

original    obligation    of    the    latter,  her  son.     Casey  v.  Gibbons,  136  Cal. 

Hawkins  v.  Western  National  Bank  368,  68  Pac.  1032. 
(Tex.    Civ.    App.    1912),    145    S.    W. 
722. 


19  Natuee  and  Effect.  §§   19,  20 

§  ig.  Mortgaging  of  Wife's  Separate  Property  to  Secure  the 
Debts  of  Her  Husband. — In  many  of  the  States,  if  a  wife  mort- 
gages her  separate  estate  to  secure  her  husband's  debt,  she  becomes 
a  isurety  only,  and  may  demand  such  rights  as  a,  surety  could 
claim.'*'*  But  the  wife's  rights  are  controlled  by  local  statutes,  which 
differ  greatly  and  must  be  consulted.  In  some  of  the  States  she 
has  the  same  rights  as  her  husband  as  to  disposition  of  property. 
iShe  has  the  same  rights  to  contract  as  if  she  was  sole.*^  In  other 
States  she  is  prohibited  from  mortgaging  her  estate  to  secure  her 
husband's  debt.  'And  where  it  appeared  from  <the  uncontradicted 
evidence  of  the  husband  that  he  obtained  money  from  a  bank  for 
his  own  use  on  a  note  signed  by  his  wife  and  himself,  her  name 
being  signed  first  and  his  name  underneath  her's  as  though  she 
was  the  principal  and  he  was  the  surety,  the  fact  being  known  to 
the  bank  that  'the  money  was  for  him  and  not  for  her,  it  was  held 
that  the  transaction  would  be  treated  as  a  device  to  evade  the 
statute  prohibiting  a  married  woman  from  becoming  surety  for  her 
husband  and  that  such  note  could  not  be  enforced  against  the  wife.^^ 

Under  a  statute  providing  that  no  part  of  a  married  woman's 
estate  shall  be  subjected  to  tihe  payment  of  any  debt  of  her  hus- 
band contracted  after  marriage,  a  married  woman  cannot  be  held 
liable  on  a  note  signed  by  her  as  surety  for  her  husband.^ 

§  20.  Dissolution  of  Partnership — One  or  More  Partners  As- 
suming Partnership  Debts. — After  dissolution  of  the  partnership, 
and  one  or  more  assume  the  payment  of  the  firm  debts,  releasing 
the  others,  they  stand  as  between  themselves,  principal  and  surety ; 
the  assuming  partners  become  the  principal  and  the  retiring  part- 
ners the  surety.  So  when  one  partner  retires  from  the  firm  and 
those  remaining  assmne  the  partnership  debts,  the  retiring  partner 
becomes  surety  as  between  themselves,  but  his  relation  to  the  part- 

80.  Dibble    v.    Richardson,    171   N.       81.  Worrell  v.  Forsyth,  141  III.  22, 

Y.  131,  63  N.  E.  829,  reversing  72  N.  30  N.  E.  673.   See,  also,  Bank  v.  Cum- 

Y.  Supp  304;   Bank  v.  Brown,  46  N.  berland  Lumber  Co.,  100  Tenn.  479, 

Y.  170.  47  S.  W.  85. 

Estate  of  wife  liable  for  debts  of       82.  Hart  v.  Bank  of  Russellville^ 

bankrupt  husband  for  which  she  in-  32  Ky.  Law  Rep.  338,  105  S.  W.  934. 

curred    liability    as    surety  —  action  See,  also.  Planters'  Bank  v.  Mayor, 

of  court  to  protect  estate.     See  Al-  25  Ky.  Law  Rep.  702,  76  S.  W.  331. 
derson's   Adm'r   v.   Alderson,   53   W.        83.  Black    v.    McCarley's    Ex'r,    31 

Va.  388,  44  S.  E.  313.  Ky.  Law  Rep.  1198,  104  S.  W.  1029. 


21 


SUKETYSHIP  AND  GuAEANTY, 


20 


nership  creditors  is  not  changed  without  their  consent,  and  as  to 
them,  he  is  still  a  principal  with  the  others.^*, 

§  21.  Partners  or  Principals  Agreeing  Among  Themselves — 
Effect  on  Creditors'  Rights.— The  great  weight  of  authority  is 
that  two  or  more  principal  debtors  cannot,  by  agreement  among 
themselves,  without  consent  of  the  creditor,  so  change  the  character 
of  the  liability  of  one  of  them  to  such  creditor,  from  principal  to 
surety,  as  to  entitle  him  to  demand  from  the  creditor  the  treatment 
of  a  surety  for  the  debt.  That  is,  a  retiring  partner  or  other  prin- 
cipal debtor  cannot  become  a  surety  as,  to  the  creditor  by  simply 
informing  him  that  his  co-debtors  have  agreed  that  he  shall  be  held 
only  as  a  surety.^'' 


84.  United  States.— Shepherd  v. 
May,  115  U.  S.  505,  6  Sup.  Ct.  119, 
29  L.  Ed.  456. 

Alabama.— Hall   v.   Long,   56   Ala. 

93. 

Georgia.— Preston  v.  Garrard,  120 
Ga.  689,  48  S.  E.  118,  102  Am.  St. 
Rep.  124. 

Illinois.— Moore  v.  Topliff,  107  111. 
241;  Cornwell  v.  McCowan,  81  111. 
285. 

Indiana.  —  Bays  v.  Conner,  105 
Ind.  415,  5  N.  E.  18. 

Kansas.— Gillen  v.  Peters,  39  Kan. 
489,  18  Pac.  613. 

Micliigan.— Smith  v.  Shelden,  35 
Mich.  42,  24  Am.  Rep.  529. 

Minnesota. — Lithauser  v.  Baumeis- 
ter,  47  Minn.  151,  49  N.  W.  660,  28 
Am.  St.  Rep.  336;  Wendlandt  v. 
Sohre,  37  I\Iinn.  162,  33  N.  W.  700. 

Missonri.— Skinner  v.  Hill,  32  Mo. 
App.  409. 

>'eYada. — Barker  v.  Gillson,  18 
Nev.  89,  1  Pac.  452. 

New  York.— Sizer  v.  Ray,  87  N.  Y. 
220;  Dodd  v.  Dreyfus,  17  Hun  600. 

Ohio.— Butler  v.  Birkey,  13  Ohio 
St.  514. 

Pennsjirania. — Campbell  v.  Floyd, 


153  Pa.  St.  84,  25  Atl.  1033;  Whittier 
V.  Gould,  8  Watts.  485. 

Tennessee. — Bryan  v.  Henderson, 
88  Tenn.  23,  12  S.  W.  338. 

Texas. — Shapleigh  Hardware  Co. 
V.  Wells,  90  Tex.  110,  37  S.  W.  411; 
Hall  V.  Johnston,  Hill  &  Co.,  6  Tex. 
Civ.  App.  110,  24  S.  W.  861. 

Virginia. — Buchanan  v.  Clark,  10 
Gratt.  164. 

Wisconsin. — Brill  v.  Hoile,  53  Wis. 
537,  11  N.  W.  42. 

England. — Swire  v.  Boyers,  1  Q. 
B.  Div.  536. 

85.  United  States. — Keller  v.  Ash- 
ford,  133  U.  S.  610,  10  S.  Ct.  494,  33 
L.  Ed.  667;  Shepherd  v.  May,  115  U. 
S.  505,  6  S.  Ct.  119,  29  L.  Ed.  456. 

AlaJiama. — Hall  v.  Long.  56  Ala. 
493. 

Illinois. — Commercial  Nat.  Bank 
V.  Kirkwood,  172  111.  563,  50  N.  E. 
219. 

Missouri. — Skinner  v.  Hall,  32  Mo. 
App.  409. 

Ohio. — Rawson  v.  Taylor,  30  Ohio 
St.  389. 

Texas. — White  v.  Boone,  71  Tex. 
712,  12  S.  W.  51;  Shapleigh  Hard- 
ware Co.  V.  Wells,  90  Tex.  110,  37 
S.  W.  411. 


21  Nature  and  Effect.  §  ^1 

However,  there  is  a  contrary  doctrine,  wihich  holds  that  the 
surety  being  made  known  to  the  creditor,  imposes  upon  him  the 
obligation  to  treat  him  as  surety  from  the  time  the  information  is 
received.  Hence,  the  principal  obligors  in  a  contract  may  by 
agreement  between  themselves  change  the  obligation  of  one  or  more 
of  them  from  that  of  principal  debtor  to  that  of  surety,  and  upon 
notice  of  such  agreement  to  the  obligee,  the  same  effect  will  be 
given  as  if  the  suretyship  originated  in  the  contract  itself.*®  Such 
doctrine  is  unsound,  and  makes  the  creditor  assent  to  a  new  con- 
tract. And  the  chief  justice,  in  Swire  v.  Redman^^  says  there  is 
no  English  case  which  holds  the  doctrine  that  the  agreement  be- 
tween partners  themselves,  without  the  consent  of  the  creditor,  can 
change  their  relation  to  the  latter;  and  that  he  has  found  no 
American  case  that  upholds  such  doctrine,  except  those  based  upon 
the  misinterpretation  of  Oakeley  v.  Parsheller^^  where  the  mem- 
bers of  a  partnership  execute  a  joint  note  and  mortgage,  the  latter 
being  upon  both  the  firm  property  and  also  the  individual  property 
of  one  of  the  partners,  the  latter  will  be  regarded  not  as  a  surety 
merely,  but  as  a  joint  principal,  notwithstanding  an  indemnity 
agreement  given  by  the  firm  to  such  partner  reciting  that  the  debt 
was  a  firm  debt  and  that  the  individual  property  included  in  the 
mortgage  was  merely  used  as  collateral  security  and  that  the  firm 
would  protect  him  from  all  loss  by  reason  of  thus  using  his  prop- 
erty.*» 

West  Virginia. — Barnes  v.  Boyers,  Pennsylvania. — Campbell  v.  Floyd, 

34  W.  Va.  303.  153  Pa.  St.  84,  25  Atl.  1033. 

Wisconsin. — First    National    Bank  Wisconsin. — Gates   v.   Hughes,   44 

of  Milwaukee  v.  Frick,  100  Wis.  446,  Wis.  332. 

76  N.  W.  608.  England.— Overend     v.     Financial 

England. — Swire  v.  Redman,  1  Q.  Corps,   L.   R.    7  H.   L.   348;    Oakeley 

B.  D.  536.  V.    Parsheller,    4   Ch.   &   Fr.   207,    10 

See  Story  on  Part.,  158;    Lindley  ^^is^i  N.  S.   548;   Rouse  v.  Banking 

on  Part.,  295;   Parsons  on  Part.   (3d  Co.   (1894),  App.  Cas.  586. 

Ed.),  428.  Ireland.— RIanigay  v.  Lewis,  5  Ir. 

86.  Indiana,— Williams  v.  Boyd,  78  ^eP.  C.  L.  229,  231. 

Ind.  286.  87.  1  Q.  B.  D.  536. 

Michigan.— Smith    v.    Sheldon,    35  S8.  4  Ch.  &  Fr.  207;  10  Bligh  N.  S. 

Mich.  49.  548. 

New  York. — Colgrove  v.  TallmaJi,  89.  Chandler  v.  Kyle  (Ala.  1912), 

67  N.  Y.  90.  57  So.  475. 


§§  22,  23  SuKETYSJiir  axd  Guajbanty.  22 

§  22.  Joint  Contract. — Where  a  joint  contract  is  made  by  two 
or  more  parties  for  u  joint  debt,  each  is  principal  for  his  share  of 
the  debt  and  co-surety  for  the  otiher  part.  Thus,  where  a  note  is 
signed  by  three  persons  as  joint  makers,  each  is  principal  for  one- 
third  of  'the  debt  and  co-surety  for  tiie  other  two-thirds.^**  In  such 
case  tliere  exists  between  the  parties  privity  of  contract,  which 
arises  between  sureties  and  their  principals.  Between  themselves 
each  is  principal  for  the  performance  of  the  contract  so  far  as  re- 
lates to  himself,  and  surety  for  his  co-principal  that  he  will  duly 
perform.^^ 

Wliere  a  joint  and  several  note  is  given  to  a  payee,  the  makers 
are  jointly  and  severally  bound  for  its  entire  amount ;  all  are  prin- 
cipal debtors.  As  between  the  makers,  each  is  principal  for  his 
share,  and  is  bound  to  pay  it,  and  surety  for  the  remainder.^"  Thus, 
where  several  parties  borrow  a  sum  of  money  which  they  share 
among  themselves,  and  execute  their  joint  note  to  the  payee  for  the 
total  amount,  as  between  themselves,  each  is  principal  for  the 
■amount  he  receives,  and  surety  as  to  tlie  remainder.^^ 

§  23.  Joint  Executors  and  Administrators. — The  general  rule 
is  that  a  co-executor  or  administrator  may  act  either  separately 
or  in  conjunction.  They  are  jointly  responsible  for  joint  acts,  and 
leach  is  separately  answerable  for  his  separate  act  and  defaults.^* 
In  some  States,  however,  the  rule  is  different,  and  an  executor  or 
administrator  is  liable  for  the  defaults  of  his  co-executor  or  co-ad- 
ministrator.'^^ But  these  cases  were  decided  upon  questions  of  lia- 
bility outside  of  the  bond.^"" 

90.  Goodall  v.  Wentworth,  20  Me.  95.  Connecticut. — Babcock  v.  Hub- 
322.  bard,  2  Conn.  536. 

91.  Hatch  V.  Peyton,  36  Me.  419.  Massachusetts. — Ames      v.      Arm- 

92.  Owen  v.  McGehee,  61  Ala.  440;  strong,  106  Mass.  15;  Towne  v. 
Chapman  v.  Morrill,  20  Cal.  130;  Ammidown,  20  Pick.  535;  Brazier  v. 
Fletcher   v.    Grover,   11   N.   H.   368;  Clark,  5  Pick.  96. 

Seitzler  v.  Mishler,  37  Pa.  St.  82.  Mississippi. — Jeffries     v.    Lawson, 

93.  Bank  v.  Clare,  76  Tex.  47,  13    39  Miss.  791. 

S.  W.  183;  Hall  v.  Hall,  34  Ind.  314.       New  Hampshire. — Newton  v.  New- 

94.  State    v.    Wyant,    67    Ind.    25;    ton,  53  N.  H.  537. 

Bruen  v.  Gillet,  115  N.  Y.  10,  21  N.       Pennsjiyania.— Boyd    v.    Boyd,    1 
E.   676;    Nauz   v.   Oakley,   120   N.  Y.    Watts  365. 

S4,  24  N.  E.  306.  Virginia, — Casker  v.  Harrison,  76 

Va.  85. 


23  The  Pakties.  §  24 


CHAPTER  II. 

THE  PARTIES. 

Section  24.  Infants. 

25.  Insane  Persons. 

26.  Partnership. 

27.  Attorneys-at-Law  —  Sureties    for    Their    Clients  —  Statutory 

Prohibitions. 

28.  Corporations. 

29.  National  Banks. 

30.  Ultra  Vires  Contracts. 

31.  Implied  Power  to  Become  Surety. 

32.  Principal  Under  Duress. 

33.  Non-residents. 

34.  Surety  and  Guaranty   Companies  Generally. 

§  24.  Infants. — An  infant's  liability  as  surety  does  not  differ 
from  his  other  business  contracts.  So  a  contract  of  a  minor  as 
surety  is  not  necessarily  void,  but  voidable,  and  he  may  affirm  the 
contract  upon  reaching  his  majority.  This  is  the  general  rule, 
though  the  United  States  (Supreme  Court  has  decided  that  an  in- 
fant's contract  is  voidable  only,  unless  it  appears  upon  its  face  to 
be  to  his  prejudice,  in  which  case  it  may  be  void.^  But  the  de- 
cision on  that  point  was  not  necessary  and  must  be  considered  a 
dictum. 

The  general  rule  is  that  a  contract  of  surety  by  an  infant  is 
voidable  only,  and  may  'be  affirmed  by  him  when  he  arrives  at  his 
legal  majority,  and  then  if  affirmed  it  may  be  enforced,^  or  on  the 
other  hand  he  may  repudiate  it.^ 

1.  MacGreal  v.  Taylor,  167  U.  S.  New  York.— See  Fonda  v.  Van 
€88,  17  S.  Ct.  961,  42  L.  Ed.  326.  Home,  15  Wend.  631. 

2.  Connecticut. — See  Maples  v.  Oliio. — Horner  v.  Dipple,  31  Ohio 
Wightman,  4  Conn.  376,  10  Am    Dec.  St.  72,  27  Am.  Rep.  490. 

149.  Pennsjivania, — Hinely    v.    Magor- 

Illinois.— See   Keil   v.    Healey,    84  itz,  3  Pa.  St.  428. 

111.   104;    Cole  v.   Pennoyer,   14   111.  South  Carolina.— See  State  v.  Sat- 

158.  terwhite,  20  S.  C.  536. 

Indiana. — Fetrow   v.   Wiseman,   40  Vermont, — Reed    v.    Lane,    61    Vt. 

Ind.  148.  481,  17  Atl.  796;  Patchin  v.  Cromack, 

Massachusetts. — Owen      v.     Long,  13  Vt.  330. 

112  Mass.  403;  Nightingale  v.  With-  Virginia, — See   Allen    v.    Minor,   2 

ington,  15  Mass.  272,  8  Am.  Dec.  101.  Call.  70. 


§  25  Suretyship  and  Guaranty.  24 

In  a  recent  case  it  is  decided  .that  a  minor  may  by  his  own  fraud 
estop  himself  from  avoiding  a  contract  on  the  ground  of  infancy 
but  that,  except  perhaps  in  some  extreme  cases,  he  cannot  do  so 
unless  he  had  actual,  though  not  legal,  discretion,  and  was  guilty 
of  actual  fraud,  as  by  express  representation  of  capacity  to  contract, 
inducing  the  other  party  to  enter  into  the  agreement,  nor  unless 
the  contract  was  beneficial  to  the  minor.  In  this  case  it  was  held 
that  a  minor  was  not,  however,  estopped,  even  by  actual  fraud,  from 
avoiding  a  contract  not  beneficial  to  him,  as  in  the  case  of  his  hav- 
ing become  a  mere  surety  or  accommodation  maker  of  a  promissory 
note.* 

§  25.  Insane  Persons. — The  general  doctrine  is  that  contracts 
of  insane  persons  are  not  binding  in  law  or  equity.^  But  to  this 
there  should  be  a  qualification :  A  contract  made  by  an  insane  per- 
son before  he  is  adjudged  insane  is  not  void,  but  voidable  only.** 

In  Iowa  it  is  held  that  a  person  of  unsound  mind  who  becomes 
surety  on  a  note  for  an  antecedent  debt,  is  not  liable  thereon,  even 
though  the  person  taking  the  note  had  no  knowledge  that  the 
surety's  mind  was  unsound.^ 

The  same  rules  apply  to  a  surety  who  is  insane  as  to  his  other 
contracts. 

Signing  of  bond  not  ratification  of  App.  Div.  (N.  Y.)  848,  116  N.  Y.  Supp. 

promise  to  pay.    The  signing  a  bond  437. 

to  release  merchandise  from  attach-  3.  Sanger  v.  Hibbard,  104  Fed.  455, 

ment  at  the  suit  of  the  vendor  is  not  43  C.  C.  A.  635;    Holland  v.  Colton 

a    ratification   of   a   promise   to   pay  State  Bank,  20  S.  D.  325,  106  N.  W. 

made  while  a  minor.     Lamkin  v.  Le  60. 

Doux,  101  Me.  581,  64  Atl.  1048.  Sureties  are  not  released  by  in- 
Bond  to   minor — Sale  of  property  fancy  of  co-surety.     Mills  v.  Evans, 

and  dirision  of  proceeds.     In  Ken-  18  Ky.  Law  Rep.  1067,  38  S.  W.  1090. 

tucky,  where  a  sale  of  real  property  4.  Grauman,  Marx  &  Kline  Co.  v. 

is  made  under  §  490  of  the  Code  for  Krienitz,  142  Wis.  556,  126  N.  W.  50. 

a  sale  of  property  and  a  division  of  5.  Seavers     v.     Phelps,     11     Pick. 

proceeds    among    the    owners,    the  (Mass.)  304. 

bond  to  infants  required  by  §493  need  Contract  as  surety  void.    Edwards 

not  be   given   as   by   §   497   in   such  v.  Davenport   (U.  S.  C.  C),  20  Fed. 

actions  the  share  of  the  infant  shall  756. 

remain  a  lien  on  the  land.     Powell  6.  Burnham    v.    Kidwell,    113    111. 

V.  Baer,  143  Ky.  282,  136  S.  W.  629.  425;    Somers   v.   Pumphrey,   24   Ind. 

Liability  on  bond  for  obligation  of  231;    Ingraham  v.  Baldwin,  9  N.  Y. 

infant,  see  President  and  Fellows  of  45. 

Harvard    College    v.    Kempner,    131  7.  Van  Patton  v.  Beals,  46  Iowa  62. 


25 


The  Parties. 


26 


§  26.  Partnership. — The  law  is  well  settled  that  a  partner  has 
no  authority  by  virtue  of  the  partnersliip  relation  to  sign  the  firm's 
name  for  any  purpose  not  embraced  in  the  partnership  business ; 
so  he  cannot,  without  express  authority  from  his  firm,  bind  it  as 
guarantor  or  surety,  if  such  transaction  is  not  within  the  course 
of  partnership  dealings.*^     The  authority  of  one  partner  to  bind 


8.  Alabama. — Rolston  v.  Click,  1 
Stew.  526. 

Colorado. — Lewin  v.  Barry,  15 
Colo.  App.  461,  63  Pac.  121. 

Delaware. — Maybery  v.  Bainton, 
2  Harr.  24. 

Georgia. — Burden  v.  Bekle,  3  Ga. 
App.  97,  59  S.  E.  315. 

Illinois. — Davis  v.  Blackwell,  5  111. 
App.  32;  Marsh  v.  Bank,  2  111.  App. 
217. 

Kansas. — McCormick  Harvesting 
Mach.  Co.  V  Reiner,  4  Kan.  App.  725, 
46  Pac.  539. 

Massachusetts.  —  Sw^eetzer  v. 
French,  2  Cush.  309. 

Minnesota. — Osborne  &  Co.  v. 
Stone,  30  Minn.  25,  13  N.  W.  922. 

Mississippi. — Langan  v.  Hewett,  13 
Sm.  &  M.  122. 

Oregon. — Charman  v.  McLane,  1 
Ore.  339. 

PennsylTania.  —  McQuemans  v. 
Hamlin,  35  Pa.  St.  517. 

West  Virginia.  —  Tompkina  v. 
Woodyard,  5  W.  Va.  216. 

Wisconsin. — Avery  v.  Roveell,  59 
Wis.  82,  17  N.  W.  875. 

England. — Brettel  v.  Williams,  4 
Exch.  623. 

A  partnership  is  not  bound  by  the 
indorsement  of  a  note  in  the  firm 
name  by  one  of  the  partners  for  the 
purpose  of  accommodation  or  surety 
w^ithout  the  consent  of  the  other 
partners. 

United  States. — Bank  of  Fort  Mad- 
ison V.  Alden,  129  U.  S.  372,  9  Sup. 
Ct.  332,  32  L.  Ed.  725. 


Alabama. — Lang's  Heirs  v.  War- 
ing, 17  Ala.  145. 

Connecticut. — New  York  Firemen's 
Ins.  Co.  V.  Bennett,  5  Conn.  574,  13 
Am.  Dec.  109. 

District  of  Columbia. — Presbey  v. 
Thomas,  1  App.  D.  C.  171. 

Iowa. — Whitmore  v.  Adams,  17 
Iowa  567. 

Kentucky. — Chenowith  v.  Cham- 
berlin,  6  B.  Mon.  60,  43  Am.  Dec. 
145. 

Mississippi. — Persons  v.  Oldfield 
(Miss.  1912),  57  So.  417;  Andrews  v. 
Planters'  Bank,  7  Sm.  &  M.  192,  45 
Am.  Dec.  300. 

New  York.— Smith  v.  Weston,  88 
Hun  25,  34  N.  Y.  Supp.  557;  Laverty 
v.  Burr,  1  Wend.  529;  Foot  v.  Sabin, 
19  Johm.  154,  10  Am.  Dec.  208. 

Tennessee. — See  Pooley  v.  Whit- 
more, 10  Heisk.  629,  27  Am.  Rep.  733. 

To  bind  firm  partner  must  have 
express  authority  under  seal,  or  the 
other  partners  must  be  present  at 
the  act  and  thereto  authorize  him, 
or  thereafter  ratifiy  the  act  by 
writing  under  seal.  Gordon  v.  Funk- 
houses,  100  Va.  675,  42  S.  E.  677. 

An  appeal  bond  signed  by  one  of 
the  partners  held  to  be  a  partner- 
ship contract.  Tate  v.  Holly  (Colo. 
App.  1912),  122  Pac.  58. 

Proving  authority  of  partner  to 
sign  firm  name.  Where  one  of  two 
partners  subscribes  the  partnership 
name  to  a  note  as  surety  for  a  third 
person  without  the  authority  or  con- 
sent of  the  other  partner,  the  latter 
is  not  bound,  and  it  lies  upon  the 


§  26 


SuRETYSIilP  Ax\D  GUAHANTY. 


26 


his  co-partner  is  placed  solely  upon  the  ground  of  agency  and  hence 
one  can  bind  the  other  only  within  the  scope  of  the  agency.*  And 
it  is  said  to  be  well  settled  law  that  on  the  principle  of  agency,  the 
power  of  a  partner  to  bind  his  co-partners  is  limited  to  the  objects 
and  ordinary  necessities  of  the  firm.^^  So  an  agreement  by  one 
of  the  partners  of  a  practicing  law  firm,  in  the  name  of  his  firm, 
to  save  a  surety  harmless  if  he  would  execute  a  bond  in  a  case  in 
which  the  firm  was  engaged,  being  outside  the  scope  of  the  partner- 
ship business  is  not  binding  on  a  partner  who  did  not  authorize 
or  ratify  the  signature."  And  where  a  partnership  was  engaged 
in  the  lumber  business  the  signing  of  a  builder's  bond  was  not  one 
of  the  objects  of  the  partnership  nor  an  ordinary  necessity  to  the 
partnership  and  not  within  the  power  of  one  of  the  partners.^^ 

Each  partner,  however,  is  held  to  be  the  general  agent  of  the 
firm  and  to  have  authority  to  bind  it  by  a  contract  of  guaranty,  if 
such  contract  is  within  its  scope  of  business  and  no  understanding 
(between  the  partners  can  affect  the  right  of  the  guarantee  to  re- 
cover.^*   And  a  partnership  which  was  not  originally  bound  by  the 


plaintiff  to  prove  the  authority  or 
consent  of  the  other  partner.  Per- 
sons V.  Oldfield  (Miss.  1912),  57  So. 
417,  citing  Andrews  v.  Planters' 
Bank,  7  Sm.  &  M.  192,  45  Am.  Dec. 
300;  Bloom  v.  Helm,  53  Miss.  21. 

The  right  of  a  partner  to  sign  the 
firm  name  to  a  contract  of  indemnity 
In  favor  of  third  persons  must  be 
strictly  proved;  but  it  need  not  nec- 
essarily be  proved  by  written  au- 
thority to  him.  Moran  v.  Prather,  23 
Wall.  (U.  S.)  492,  23  L.  Ed.  121. 

When  partners  bound  both  as 
I)rinoii)als  and  liulhiduallj.  Where 
a  partnership  had  been  appointed 
agents  of  an  insurance  company  and 
the  bond  was  executed  as  princi- 
pals by  the  partners  individually 
and  in  the  partnership  name,  it  was 
decided  that  the  partners  thus  ap- 
pointed agents  were  individual  prin- 
cipals, against  the  dishonest  acts  of 
either  or  all  of  whom  the  surety 
company  undertook  to  indemnify  the 


insurance  company.  United  States 
Fidelity  &  Guaranty  Co.  v.  Sexton, 
134  Ga.  56,  67  S.  E.  449. 

9.  Persons  v.  Oldfield  (Miss.  1912), 
57  So.  417. 

10.  Kneisley  Lumber  Co.  v.  Stod- 
dard Co.,  131  Mo.  App.  15,  109  S.  W. 
840,  citing  Brandt  on  Surety  and 
Guar.,  §  27;  22  Am.  &  Eng.  Encyc. 
of  Law  (2d  Ed.),  p.  144. 

11.  Leeberger  v.  Wyman,  108  Iowa 
527,  79  N.  W.  290;  Examine,  Fornes 
&  Co.  V.  Wright,  91  Iowa  392,  59  N. 
W.  51. 

12.  Kneisley  Lumber  Co.  v.  Stod- 
dard Co..  131  Mo.  App.  15,  109  S.  W. 
840. 

13.  First  National  Bank  of  Du- 
buque V.  Carpenter,  Stibbs  &  Co.,  41 
Iowa  518. 

Where  one  endorsed  a  note  at  the 
request  of  a  member  of  a  firm,  for 
the  purpose  of  obtaining  money  for 
the  use  of  the  firm,  and  the  proceeds 
were    so    used,    the    endorser   upon 


27  The  Parties.  §  27. 

act  of  a  partner  in  signing  the  firm  name  to  a  contract  of  surety- 
ship, guaranty  or  accommodation  indorsement  may  subsequently 
ratify  such  unauthorized  act.^* 


§  27.  Attorneys-at-Law — Sureties  for  Their  Clients — Statu- 
tory Prohibition. — In  many  of  the  States  it  is  declared  by  statute 
that  an  attorney-at-law  shall  no>t  become  surety  for  his  client,  but 
if  he  does  become  surety,  he  will  be  liable.^^  So  if  a  judge  become 
surety  on  an  official  bond,  which  action  is  contrary  to  statute,  yet 
he  will  be  bound,  as  such  statutes  are  only  directory.^® 

In  Wisconsin  an  attorney  does  not  become  liable  when  he  be- 
comes surety  for  his  client,  contrary  to  statute."  In  the  absence 
of  statutory  provisions  an  attorney  may  legally  become  a  surety 
for  his  client.-^^ 

The  rule  of  court  prohibiting  attorneys  from  being  sureties  for 
their  clients  in  a  legal  proceeding  extends  only  to  bail  for  the  ap- 
pearance of  tho  parties  arrested,  and  does  not  apply  to  their  being 
surety  for  costs.^^  If  the  attorney  becomes  surety  in  violation  of 
the  statute  or  rule  of  court,  it  does  not  relieve  him  of  liability  as 
a  surety,  because  he  cannot  take  advantage  of  his  own  wrong  when 

payment   of   the   note,    can   recover  County  v.  Findley,   101  Mo.  368,  14 

therefor  against  the  firm,  though  no  S    W.    ]11;    Hicks   v.    Chouteau,    12 

member  of  such  firm  signed  the  note.  Mo.  341. 

Springs  v.  McCoy,  122  N.  C.  628,  29  Nebraska.— Tessier  v.  Crowley,  17 

S.  E.  903.  Neb.  207,  22  N.  W.  422. 

14.  Burden  v.  Dekle,  3  Ga.  App.  Ohio.— Wallace  v.  Scoles,  6  Ohio 
97,  59  S.  E.  315;   Crawford  v.  Ster-  429. 

ling,  4  Esp.  207.  England.— Harper  v.  Tahourdln,  6 

15.  Illinois.— See   Jack   v.    People,    M.  &  Sel.  383. 

19  111.  57.  17.  Cothren    v.     Connaughton,     24 

lOTva.— Cuppy  v.  Coffman,  82  Iowa  Wis.  134;  Gilback  v.  Stephenson,  30 

214,     47     N.     W.     1036;     Wright     v.  Wis.  155.     See,  also,  Fond  du  Lac  v. 

Schmidt,  47  Iowa  233.  Moore,  58  Wis.  170,  15  N.  W.  782. 

South  Dakota. — Towle  v.  Bradley,  18.  Walker   v.   Holmes,   22   Wend. 

2  S.  Dak.  472.  (N.  Y.)  614;  Abbott  v.  Zeigler,  9  Ind. 

Wisconsin. — Gilbank    v.    Stephen-  511. 

8on,  30  Wis.  155.  19.  Jones  v.   Savage,  10   Daly   (N. 

16.  Kansas. — Sherman  v.  State,  4  Y.)  621;  Sigourney  v.  Waddle,  9 
Kan.  570.  Paige  (N.  Y.)  381;  Coster  v.  Watson, 

Indiana.— Ohio,  etc.,  R.  R.  Co.  v.  15  Johns.  (N.  Y.)  535.  See,  also. 
Hardy,  64  Ind.  454.  Stark  v.  Small,  72  Wis.  215,  39  N.  W. 

Missonri. — State    ex    rel.    Howell   359. 


§    i^y  ISUKETYSHIP  AND  GuAEANTY.  28- 

sued  upon  the  undertaking.'"  But  tlie  proceedings  may ^  be  dis- 
missed when  the  statute  or  rule  of  court  has  been  violated/^  or  the 
court  may  hold  the  attorney  in  contempt  of  court  when  in  opposi- 
tion to  rule  f  or  the  court  may  allow  the  bond  to  be  amended  and 
made  sufficient.'^ 

§  28.  Corporations.— The  general  rule  is  that  a  corporation 
has  those  rights  to  contract  which  are  given  it  by  its  charter,  or  act 
of  creation.  A  private  corporation  may  borrow  money,  and  be- 
come a  party  to  negotiable  paper  in  the  transaction  of  its  legitimate 
business,  unless  expressly  prohibited;  and  until  the  contrary  is 
shown,  the  legal  presumption  is  that  its  acts  in  that  behalf  are  done 

20.  Illicois. Jack    v.    People,    19    legitimate    course    of    its    business, 

jjj   5Y  and,  whether  so  executed  or  not,  will 

Indiana. Ohio,  etc.,  R.  R.  Co.  v.    be  valid  in  the  hands  of  a  bona  fide 

Hardy,  64  Ind.  454.  holder    without    notice."      Knapp    & 

lo-vva.— Wright  v.  Schmidt,  47  Iowa    Co.    v.    Tidewater    Coal    Co.    (Conn. 
233  1912),  81  Atl.  1063,  citing  Daniels  on 

Kansas. Cook     v.     Caroway,     29    Negotiable  Instruments,  §  386. 

j^^jj   4]^  Presumption  as  to  use  of  money 

Kentucky.— Holandworth  v.  Com-  borrowed.  Where  a  note  is  signed 
monwealth,  11  Bush.  617.  by   a  member  of   a   corporation    as 

Massachusetts,— Morrill  v.  Lam-  surety  for  the  purpose  of  borrowing 
son    138  IVIass.  115.  money,  it  will  be  conclusively  pre- 

Sebraska. — Tessier  v.  Crowley,  17  sumed  that  he  signed  the  note  to  the 
Neb.  207,  22  N.  W.  422.  end  that  the  money  should  be  paid 

Qjiio, Wallace   v.   Scoles,   6   Ohio   into    the    corporation    treasury    and 

429  then  be  disbursed  according  to  the 

IVisconsin. Fond      du      Lac      v.    by-laws  for  the  transaction  of  cor- 

Moore,  58  Wis.  170,  15  N.  W.  782.  porate   business.      Hughes    v.    Ladd, 

21.  Love    V.    Shiffelin,    7    Fla.    40;    42  Ore.  123,  69  Pac.  548. 

Massie  v.  Maun,  17  Iowa  131;   Gil-  Presumption  from  corporate  seal. 

bank  v.  Stephenson,  30  Wis.  155.  The  seal  of  a  corporation  affixed  to 

22.  Abbott  V.  Zeigler,  9  Ind.  511;  a  written  instrument  executed  by  its 
Ohio,  etc.,  R.  R.  Co.  v.  Hardy,  6  Ohio  officers  in  the  business  of  the  cor- 
455  poration  imports  and  raises  the  pre- 

23.  Branger  v.  Buttrick,  30  Wis.  sumption  that  they  were  duly  au- 
253_  thorized  to  execute  the  instrument. 

Presumption     as     to     corporation  Gay  v.  Hudson  River  Electric  Power 

paper.      "When    a    corporation    has  Co.  (U.  S.  C.  C),  190  Fed.  773. 

the  general   power,  express  or  im-  A  prnaranty  given  as  part  of  the 

plied,    to   be    a   party   to   bills    and  consideration    for    the    purchase    of 

notes,  such  instruments  will  be  pre-  the  stock  of  another  corporation  held 

sumed  to  have  been  executed  in  the  not   ultra  vires,  the  corporation  In 


29  The  Parties.  §  28 

in  the  regular  course  of  its  business.^*  So  where  a  corporation  is 
authorized  by  statute  to  guarantee  the  bonds  of  another  corpora- 
tion "  in  pursuance  of  a  unanimous  vote  of  its  stockholders  "  and 
there  is  a  recital  in  the  guarantee  that  such  corporation  "  has 
voted  and  agreed  to  indorse  and  guarantee  the  payment  of  the 
initial  bond  and  all  other  bonds  of  the  same  series  "  it  will  be 
presumed,  in  the  absence  of  proof  to  the  contrary,  that  the  guar- 
anty was  duly  and  legally  authorized  and  executed.^*  And  a  rail- 
road corporation  is  responsible  in  its  corporate  capacity  for  acts 
done  by  its  agent,  either  ex  coiitractu  or  ex  delicto,  in  the  course 
of  its  business  and  within  the  scope  of  the  agent's  authority.^®  But 
though  it  appears  that  an  officer  of  a  corporation  not  authorized 
to  issue  negotiable  paper  had  made  other  accommodation  notes  like 
the  one  in  suit,  that  fact  alone  is  held  not  sufficient  to  charge  the 
corporation  with  liability  on  the  paper  as  a  matter  of  law."     Cor- 

making  the  purchase  having  acted  An  officer  of  a  corporation  has  no 

under  authority  of  a  statute  permit-  such  power  unless  giyen.    Pelton  v. 

ting     it    to     make    such     purchase.  Spider  Lake  Sawmill  &  Lumber  Co., 

Windmiller   v.   Howard   Distilling  &  117  Wis.  569,  94  N.  W.  293,  98  Am. 

Distributing  Co.,  106  App.   Div.    (N.  St.  Rep.  946. 

Y.)  246,  94  N.  Y.  Supp.  52,  affirmed  A  manager  of  a  corporation  has 

186  N.  Y.  572,  79  N.  E.  1119.  no  implied  authority  to  sign  its  name 

24.  Canal  Co.  v.  Vallette,  21  How.  as  an  accommodation  endorser, 
(U.  S.)  424,  16  L.  Ed.  154;  Farnum  V.  surety  or  guarantor.  Haupt  v. 
Blackston,  1  Sumner  (U.  S.)  46.  Vint,   68   W.   Va.   657,   70   S.   E.   702. 

25.  Gay  v.  Hudson  River  Electric  See,  also,  Simmons  National  Bank  v. 
Power  Co.  (U.  S.  C.  C),  190  Fed.  Dilley  Foundry  Co.,  95  Ark.  368,130 
773.  S.  W.  162. 

26.  Railroad  Co.  v.  Quigley,  21  The  cashier  of  a  bank  is  the 
How.  (U.  S.)  202,  16  L.  Ed.  73.  proper  officer  to  execute  a  bond  on 

27.  Jacobs  v.  Jamestown  Mantel  its  behalf  to  secure  a  deposit  of  pub- 
Co.,  149  App.  Dlv.  (N.  Y.)  356,  134  N.  lie  money  made  therein,  and  the 
Y.  Supp.  418,  holding  that  the  mere  bank  will  be  bound  by  such  execu- 
fact  that  a  negotiable  instrument  is  tion,  in  the  absence  of  some  rule  or 
signed  by  an  officer  of  a  corporation  regulation  adopted  by  the  directors: 
does  not  of  itself  prove  his  authority  or  stockholders  requiring  special 
to  issue  the  instrument.  Compare  authority  on  the  part  of  the  cashier 
Chicago  &  M.  Telegraph  Co.  v.  Type  to  execute  such  bonds,  and  notice  of 
Telegraph  Co.,  137  111.  App.  131,  such  fact  brought  to  the  attention  of 
holding  that  continued  acquiescence  the  obligee  therein.  Johnson  County 
in  acts  of  officer  in  executing  guar-  v.  Chamberlain  Banking  House,  80 
anty  in  question  and  receipt  of  bene-  Neb.  96,  113  N.  W.  1055. 

fits    thereunder    estops    corporation       Liability  of  officer  of  corporatioTi, 
to  assert  act  to  be  ultra  vires.  Where   an   officer   of  a  corporation 


§  28 


Suretyship  and  Guaeanty. 


30 


porations,  as  much  as  individuals,  are  bound  to  act  in  good  faith 
and  fair  dealing,  and  the  rule  is  well  settled  that  they  cannot,  by 
acts,  re/preseuitations  or  silence,  involve  others  in  onerous  engage- 
ments and  then  turn  round  and  disavow  their  acts  and  defeat  just 
obligations  which  their  own  conduct  has  superinduced."^  So  when 
a  .State  gives  a  railroad  corporation  power  to  guarantee  bonds  is- 
sued by  towns  and  cities  along  the  line  for_the  benefit  of  the  road, 
such  guaranty  is  valid.^^  But  unless  the  corporation  has  legal  au- 
thority to  guarantee  such  bonds,  or  to  guarantee  future  dividends, 
such  action  by  the  corporation  will  be  ultra  vires,  and  is  invalid.^'* 
Ordinarily  the  simple  act  of  becoming  an  accommodation  in- 
dorser  or  a  surety  or  guarantor  for  the  contract  debt  of  a  person 
or  corporation  is  not  within  the  implied  powers  of  a  corporation.^^ 


endorses  accommodation  paper  in 
the  corporate  name  through  a  mis- 
take of  law  as  to  the  capacity  of  the 
corporation  to  bind  itself  by  such  a 
contract,  the  fact  that  the  corpora- 
tion cannot  be  bound  is  no  grouna 
for  charging  the  agent,  whose  con- 
nection with  the  attempt  to  make 
the  contract  was  obviously  in  his 
capacity  as  agent.  Wolfe  &  Sons  v. 
McKeon  (Ala.  1911),  57  So.  63. 

28.  Bargate  v.  Shortridge,  5  H.  L. 
Cas.  297;  Zabriskie  v.  Railroad  Co., 
23  How.  (U.  S.)  397,  16  L.  Ed.  488. 

29.  Railroad  Co.  v.  Howard,  7 
Wall.   (U.  S.)   392,  19  L.  Ed.  117. 

30.  Elevator  Co.  v.  Memphis  &  C. 
R.  Co.,  85  Tenn.  703,  5  S.  W.  52. 

SI.  United  States.— Ward  v.  Jos- 
lin,  186  U.  S.  142,  46  L.  Ed.  1093,  22 
Sup.  Ct.  807,  affirming  105  Fed.  224, 
44  C.  C.  A.  456;  Pennsylvania  R.  Co. 
V.  St.  Louis,  A.  &  T.  H.  R.  Co.,  118 
U.  S.  290,  30  L.  Ed.  83,  6  Sup.  Ct. 
1094;  Louisville,  etc.,  R.  R.  Co.  v. 
Imp.  R.  R.  Co.,  69  Fed.  433. 

AIa])ania.— Wolfe  &  Sons  v.  Mc- 
Keon (Ala.  1911),  57  So.  63. 

Arkansas.  —  Simmons  National 
r-nk  V.  Dilley  Foundry  Co.,  95  Ark. 
368,  130  S.  W.  162. 


Connecticut.  —  Knapp  &  Co.  v. 
Tidewater  Coal  Co.  (Conn.  1912),  81 
Atl.  1063;  Aetna  National  Bank  v. 
Ins.  Co.,  50  Conn.  167. 

Illinois. —  Best  Brewing  Co.  v. 
Klassen,  185  111.  37,  57  N.  E.  20; 
Pick  V.  Ellinger,  66  111.  App.  570. 

Iowa. — Twiss  V.  Guaranty  Life 
Ass'n,  87  Iowa  733,  55  N.  W.  8; 
Lucas  V.  White  Line  Transfer  Co., 
70  Iowa  541,  30  N.  W.  771. 

Louisiana. — Robert  Gair  Co.  v". 
Columbia  Rice  Packing  Co.,  124  La. 
193,   50   So.   8. 

Michig^an.— Knickerbocker  v.  Wil- 
cox, 83  Mich.  200,  47  N.  W.  123. 

New  Hampshire. — Norton  v.  Bank, 
61  N.  H.  589. 

New  Jersey.  —  Owen  &  Co.  v. 
Storms  &  Co.,  78  N.  J.  L.  154,  72  Atl. 
441;  Blake  v.  Domestic  Mfg.  Co.,  64 
N.  J.  Eq.  480,  38  Atl.  241. 

New  York. — Jacobus  v.  James- 
town Mantel  Co.,  149  App.  Div.  356, 
134  N.  Y.  Supp.  418;  National  Bank 
of  Newport  v.  Snyder  Mfg.  Co.,  117 
App.  Div.  370,  102  N.  Y.  Supp.  478; 
Fox  V.  Rural  Home  Co.,  90  Hun  365, 
35  N.  Y.  Supp.  896,  affirmed  157  N.  Y. 
684,  51  N.  E.  1090;  Carlaftes  v.  Gold- 
meyer  Co.,  72  Misc.  R.  75,  129  N.  Y. 


31 


The  Parties. 


2^ 


§  29.  National  Banks. — National  banks  possess  only  such 
powers  as  are  expressly  conferred  upon  them  by  the  act  of  Congress. 
under  whieh  they  are  organized,  and  no  power  is  given  them  to  en- 
iter  into  contracts  of  surety  in  which  they  have  no  interesit.^^  Thus, 
a  national  bank  has  no  legal  power  to  guarantee  a  contract  between 
third  persons  for  the  delivery  of  building  material.^  But  when  it 
is  in  the  course  of  its  ordinary  business,  it  may  guarantee  payment 
of  a  note  which  it  indorses  for  tJie  purpose  of  transfer.^*  But  a 
bank  cannot  as  such  become  a  surety  upon  a  bond,  and  cannot  have 
any  understanding  or  make  a  contract  except  as  its  proper  officers 
shall  make  the  promise  in  the  line  of  its  powers;  hence,  sureties 
upon  a  public  officer's  bond  executed  in  pursuance  of  an  under- 
standing tihat  public  funds  would  be  deposited  in  the  bank  repre- 
sented by  them  and  interest  be  paid  thereon  to  the  officer,  are 
parties  to  such  illegal  arrangement,  which  cannot  be  treated  as 
having  been  made  with  the  bank  as  a  corporate  entity,  so  as  to 
leave  the  sureties  untainted  with  the  transaction,  and  its  illegality 
will  prevent  them  from  enforcing  under  such  contract  indemnity 
against  the  defaulting  principal.^^ 


Supp.  396;  Filon  v.  Brewing  Co.,  38 
N.  Y.  St.  Rep.  602,  15  N.  Y.  Supp.  57. 

Pennsjlyania. — Culver  v.  Real  Es- 
tate Co.,  91  Pa.  St.  376. 

Rhode  Island. — Cook  v.  American 
Tubing  &  Webbing  Co.,  28  R.  I.  41, 
65  Atl.  641. 

Texas.— North  Side  R.  R.  Co.  v. 
Worthington,  88  Tex.  562;  Waller  v. 
German  Mercantile  Co.  (Civ.  App. 
1911),  141  S.  W.  833;  Bowman  Lum- 
ber Co.  V.  Pierson  (Civ.  App.  1911), 
139  S.  W.  618;  Deaton  Grocery  Co.  v. 
International  Harvester  Co.  (Civ. 
App.  1907),  105  S.  W.  556. 

Wasliiugton.  —  Spencer  v.  Alki 
Point  Transp.  Co.  (Wash.  1910),  101 
Pac.  509. 

West  Virginia. — Haupt  v.  Vint,  68 
W.  Va.  657,  70  S.  E.  702. 

Wisconsin. — Madison,  etc..  Plank 
Road  Co.  v.  Plank  Road  Co.,  7  Wis. 
59. 


England.— Coleman  v.  Railroad 
Co.,  10  Beav.  1. 

No  po^er  to  become  surety  on  ap- 
peal bonds.  Best  Brewing  Co.  v. 
Klassen,  185  111.  37,  57  N.  E.  20,  50 
L.  R.  A.  765,  76  Am.  St.  Rep.  26;  Kel- 
ley,  Maus  &  Co.  v.  O'Brien  Varnish 
Co.,  90  111.  App.  287. 

32.  United  States.  —  Bullard  v. 
Bank,  18  Wall.  589,  21  L.  Ed.  923. 

Michigan. — Knickerbocker  v.  Wil- 
cox, 83  Mich.  200,  47  N.  W.  123. 

Missouri. — Matthews  v.  Skinker, 
62  Mo.  329. 

Pennsylvania. — Bank  v.  Hock,  89 
Pa.  St.  324. 

Vermont. — Wiley  v.  Bank,  47  Vt. 
546. 

33.  Norton  v.  Bank,  51  N.  H.  589. 

34.  People's  Bank  v.  Bank,  101  U. 
S.  181,  25  L.  Ed.  907. 

35.  Ramsay's  Estate  v.  Whitbeck,. 
183  111.  550,  56  N.  E.  322. 


§   30 


Suretyship  and  Guaranty. 


32 


Ultra  Vires  Contracts. —  Executory  contracts  of  corpora- 

*^     'So  a  com- 


sureties  are  as  a  general  rule  void. 


§30. 

tions  to  act  as 

pany  incorporated  for  the  purpose  of  buying  lands  at  tax  sale,  to 
buy  and  sell  real  estate,  borrow  and  loan  money  on  mortgages,  trust 
deeds  and  other  securities  and  >to  purchase  notes,  bonds,  bills  and 
other  choses  in  action  has  no  authority  to  execute  surety  bonds  and 
its  acts  in  so  doing  are  ultra  vires.^'^  But  some  decisions  hold  that 
a  corporation  may  become  a  surety  and  the  contract  enforced  if  it 
results  in  increasing  the  trade  or  business  of  the  corporation,  and 


36.  United  States.— In  re  Liquor 
Dealers'  Supply  Co.,  177  Fed.  197, 
101  C.  C.  A.  367;  Mapes  v.  German 
Bank  of  Tilden,  176  Fed.  89,  99  C.  C. 
A.  609. 

Alabama. — First  National  Bank  of 
Gadsden  v.  Winchester,  119  Ala.  168, 
24  So.  351. 

Colorado.  —  Eagan  v.  Mahoney 
(Colo.  App.  1912),  121   Pac.   108. 

Georgia. — Hauser  v.  Farmers'  Sup- 
ply Co.,  6  Ga.  App.  102,  64  S.  E.  293. 

Illinois. — Rogers  v.  Jewell  Belting 
Co.,  184  111.  574,  56  N.  E.  1117,  re- 
versing 84  111.  App.  249. 

lo-iva. — Twiss  v.  Guaranty  Life  As- 
sociation, 87  Iowa  733,  55  N.  W.  8. 

Maryland.  —  Hadaway  v.  Hynson, 
89  Md.  305,  43  Atl.  806. 

Missouri.— Ellett-Kendall  Co.  v. 
"Western  Stores  Co.,  132  Mo.  App. 
513,  112  S.  W.  4. 

PennsjiTsinia. — Culver  v.  Real  Es- 
tate Co.,  91  Pa.  St.  367. 

Texas. — INIorgan  &  Bros.  v.  Mis- 
souri, K.  &  T.  Ry.  Co.  (Tex.  Civ.  App. 
1908),  110  S.  W.  978. 

See,  also,  cases  cited  in  §  28. 

Si?jning:  negotiable  paper  for  ac- 
commodation is  ultra  vires. 

United  States. — Park  Hotel  Co.  v. 
Fourth  National  Bank,  86  Fed.  743, 
SO  C.  C.  A.  409;  Lyon,  Potter  &  Co. 
T.  First  National  Bank,  85  Fed.  120, 
29  C.  C.  A.  45. 


Alabama. — Steiner  v.  Steiner  Land 
&  Lumber  Co.,  120  Ala.  128,  26  So. 
494. 

Arkansas.  —  Simmons  National 
Bank  v.  Dilley  Foundry  Co.,  95  Ark. 
368,  130  S.  W.  162. 

Massachusetts. — Brill  Co.  v.  Nor- 
ton &  T.  St.  R.  Co.,  189  Mass.  431, 
75  N.  E.  1090,  2  L.  R.  A.  (N.  S.) 
525. 

Jfebraska. — Preston  v.  Northwest- 
ern Cereal  Co.,  67  Neb.  45,  93  N.  W. 
136. 

IVew  Jersey.  —  Owen  &  Co.  v. 
Storms  &  Co.,  78  N.  J.  L.  154,  72  Atl. 
441. 

New  York.  —  Jacobus  v.  James- 
town Mantel  Co.,  149  App.  Div.  356, 
134  N.  Y.  Supp.  418;  Carlaftes  v. 
Goldmeyer  Co.,  72  Misc.  Rep.  75,  129 
N.  Y.  Supp.  396. 

Rhode  Island. — Cook  v.  American 
Tubing  &  Webbing  Co.,  28  R.  I.  41, 
65  Atl.  641. 

Tennessee. — IMcCampbell  v.  Foun- 
tain Head  R.  A.,  Ill  Tenn.  55,  77 
S.  W.  1070,  102  Am.  St.  Rep.  731. 

West  Virginia, — Haupt  v.  Vint,  68 
W.  Va.  657,  70  S.  E.  702. 

Defense  of  ultra  vires  is  not  avail- 
able unless  pleaded.  Bacon  v.  Mon- 
tauk  Brewing  Co.,  130  App.  Div.  (N. 
Y.)  737,  115  N.  Y.  Supp.  617. 

37.  Eagan  v.  Mahoney  (Colo.  App. 
1912),  121  Pac.  108. 


33 


The  Paeties. 


§  30 


is  incident  to  the  scope  of  its  business.^*  Tims,  a  brewery  com- 
pany may  guarantee  the  payment  of  rent  of  a  hotel,  the  bar  flx- 
•tures  and  furniture  of  which  it  owns,  and  in  which  its  beer  is  to 
be  sold  to  the  trade.^*  -And  so  a  lumber  company  may  'become 
surety  for  a  contractor  who  agrees  to  buy  his  lumber  from  it/'' 


38.  United  States. — Vanderveer  v. 
Asbury  Park  &  B.  S.  R.  Co.  (C. 
C),  82  Fed.  355. 

Illinois. — Heim's  Brewing  Co.  v. 
Flannery,  137  111.  309,  27  N.  E.  286; 
Standard  Brewery  Co.  v.  Kelly,  66 
111.  App.  267. 

Kentncky. — Monarch  Co.  v.  Farm- 
ers &  Drovers'  Bank,  105  Ky.  430,  20 
Ky.  Law  Rep.  1351,  49  S.  W.  317,  88 
Am.  St.  Rep.  310. 

Michigan. — Constantine  v.  Kala- 
mazoo Beet  Sugar  Co.,  132  Mich. 
480,  93  N.  W.  1088,  9  Det.  Leg.  N.  672. 

Nebraska. — Horst  v.  Lewis,  71 
Neb.  365,  98  N.  W.  1046,  affirmed,  on 
rehearing,  71  Neb.  365,  103  N.  W.  460. 

New  York.— Hall  v.  Ochs,  34  App. 
Div.  103,  54  N.  Y.  Supp.  4;  Koehler 
&  Co.  V.  Rainheimer,  26  App.  Div.  1, 
49  N.  Y.  Supp.  755,  reversing  20  Misc. 
Rep.  62,  45  N.  Y.  Supp.  337;  Field  v. 
Burr  Brewing  Co.,  18  N.  Y.  Supp. 
456. 

Texas. — Forty  Acre  Spring  Live 
Stock  Co.  v.  West  Texas  Bank  & 
Trust  Co.  (Civ.  App.  1908),  111  S.  W. 
417. 

Wisconsin. — Winterfield  v.  Cream 
City  Brewing  Co.,  96  Wis.  239,  71  N. 
W  101. 

See  §  31  herein. 

Where  a  new  customer  is  obtained 
hy  a  corporation  by  its  entering  into 
a  contract  of  guaranty,  such  act  will 
■be  regarded  as  within  its  implied 
powers.  Blue  Island  Brewing  Co.  v. 
Fraatz,  123  111.  App.  26. 

Where  all  the  stock  of  one  corpo- 
ration is  owned  by  another  it  is  held 


that  the  indorsement  by  the  latter  of 
accommodation  paper  for  the  former 
is  not  ultra  vires.  In  re  New  York 
Car  Wheel  Works  (C.  C.  A.),  141 
Fed.  430. 

39.  Winterfield  v.  Cream  City 
Brewing  Co.,  96  Wis.  239,  71  N.  W. 
101. 

That  brewery  company  may  guar- 
antee payment  of  rent  of  saloon,  see, 
also.  Hall  v.  Ochs,  34  App.  Div.  (N. 
Y.)  103,  54  N.  Y.  Supp.  4;  Koehler  & 
Co.  V.  Rainheimer,  26  App.  Div.  (N. 
Y.)  1,  49  N.  Y.  Supp.  755,  reversing 
20  Misc.  Rep.  62,  45  N.  Y.  Supp.  337. 

Signing  bond  of  saloonkeeper.  A 
corporation  engaged  in  wholesale 
liquor  business  has  implied  power 
to  sign  the  bond  of  a  saloonkeeper, 
though  the  latter  has  entered  into 
no  agreement  to  purchase  his 
liquors  of  the  former.  Munoz  v. 
Brassel  (Tex.  Civ.  App.  1908),  108 
S.  W.  417. 

The  secretary  of  a  brewing  Com- 
pany  has  no  authority  to  execute  a 
guaranty  in  the  corporate  name  of 
rent  of  premises  occupied  by  a 
saloonkeeper  who  makes  no  agree- 
ment to  buy  liquors  exclusively  of, 
or  to  do  any  other  act  for  the  bene- 
fit of  the  grantor,  and  who  offers  no 
other  inducement,  such  act  not  be- 
ing expressly  authorized  by  the 
board  of  directors.  IMcBroom  v.  Che- 
boygan Brewing  &  Malting  Co.,  162 
Mich.  323,  127  N.  W.  361,  17  Det.  Leg. 
N.  571. 

40.  Wittmer  Lumber  Co.  v.  Rice, 
23  Ind.  App.  586,  55  N.  E.  868. 

See,  also,  Central  Lumber  Co.  t. 


§    30  SUKETYSHIP  AND  GuAR^iNTY.  34r 

And  the  rule  that  a  corporation  can  neither  make  nor  indorse  com- 
mercial paper  for  accommodation,  even  though  paid  therefor,  is 
held  not  to  be  applicable  whore  the  corporation  assumes  an  obliga- 
tion of  another  for  the  purpose  of  protecting  its  own  interests.^^ 
So  a  corporation  executing  a  note  jointly  with  others  for  which 
it  received  its  proportionate  share  of  the  consideration  for  which 
the  note  was  given,  cannot  claim  that  it  was  only  a  surety  as  to 
the  other  makers  and  that  the  note  was  therefore  ultra  vires,  it 
being  authorized  by  its  charter  to  borrow  money /^  And  it  is  held 
that  an  executed  contract  cannot  be  avoided  for  ultra  vires  when 
itho  corporation  has  received  the  benefits  of  the  contract.  So  after 
the  contract  is  executed  the  corporation  cannot  allege  its  surety- 
ship as  an  ultra  vires  contract  and,  therefore,  void/^ 

It  is  a  rule  that  a  corporation  which  has  received  and  retained 
the  benefits  of  an  ultra  vires  contract  is  prohibited  from  repudiat- 
ing its  obligations  thereunder.  This  doctrine  has  been  applied 
where  a  corporation  was  an  accommodation  indorser  or  surety 
upon  notes.*^ 

However,  this  general  rule  has  qualifications.  A  contract  of  a 
corporation  which  is  ultra  vires  in  the  proper  sense,  that  is,  out- 
side of  the  object  of  its  creation  as  defined  in  the  law  of  its  or- 
ganization, and  therefore  beyond  the  powers  conferred  upon  it  by 
the  legislature,  is  not  voidable  only,  but  wholly  void  and  of  no 
legal  effect.  Because  the  objection  to  the  contract  is  not  merely 
that  the  corporation  ought  not  to  have  made  it,  but  that  it  could 
not  make  it.  Such  contract  cannot  be  ratified  by  either  party  be- 
cause it  could  not  have  been  authorized  by  either.     IsTo  perform- 

Kelter,  102  111.  App.  333,  affirmed  Kansas.— Arkansas  Valley  Farm 
201  111.  503,  66  N.  E.  543.  &  Land  Co.  v.  Lincoln,  56  Kan.  145. 

41.  Bacon     v.     Montauk     Brewing    42  Pac.  706. 

Co.,  130  App.  Div.  (N.  Y.)  737,  115  Pennsylrania.— National  Bank  of 
N.  Y.  Supp.  617.  Western  Pennsylvania  v.  Lake  Erie 

42.  Session  v.  Lindeberg,  66  Wash.    Asphalt  Co.  (Pa.  1912),  82  Atl.  773. 

1,  118  Pac.  900.  Texas.— Waller    v.    German    Mer- 

43.  Illinois.  —  Kadish    v.    Garden    cantile  Co.   (Civ.  App.  1911),  141  S. 
City  Equitable  Loan  &  Bldg.  Ass'n,    W.  833. 

151  111.  531,  38  N.  E.  236;  Chicago  &  44.  Waller  v.  German  Mercantile 
M.  Telegraph  Co.  v.  Type  Telegraph  Co.  (Tex.  Civ.  App.  1911),  141  S.  W, 
Co.,  137  111.  App.  131.  833. 

Indiana.  —  Wittmer    v.    Rice,    23 
Ind.  App.  586,  55  N.  E.  868. 


35  The  Parties.  §  31 

ance  on  either  side  can  give  the  said  contract  any  validity  or  be 
the  foundation  of  any  right  of  action  upon  it.  When  a  corpora- 
tion is  acting  within  the  general  scope  of  its  powers  conferred  upon 
it  by  the  legislature,  the  corporation,  as  well  as  persons  contract- 
ing with  it,  may  be  estopped  to  deny  that  it  has  complied  with  the 
legal  formalities  which  are  requisites  of  its  existence  or  to  its 
action,  'because  such  requisites  might  in  fact  have  been  complied 
with.  But  when  the  contract  is  beyond  the  power  conferred  upon 
it  by  existing  laws,  neither  the  corporation  nor  the  other  party  to 
the  contract  can  be  estopped  by  assenting  to  it  or  by  acting  upon 
it,  to  show  that  it  was  prohibited  by  those  laws,  for  the  contract 
is  void.*^  And  the  party  receiving  the  benefits  may  be  compelled 
to  restore  what  he  has  received  or  pay  a  compensation  on  implied 
contract,  and  not  on  the  original  contract,  which  is  void  abso- 
lutely."^ 

That  the  act  on  the  part  of  the  corporate  obligee  is  ultra  vires 
is  held  not  to  relieve  the  sureties."^ 

Where  a  corporation  relies  on  the  defense  of  ultra  vires  it  has 
been  decided  that  it  has  ithe  burden  of  establishing  that  its  act 
was  such.*^ 

§  31.  Implied  Power  to  Become  Surety. — A  power  will  be  im- 
plied that  a  corporation  may  become  surety  whenever  reasonably 
necessary  or  is  usual  in  the  conduct  of  its  business,  or  reasonably 
necessary  or  proper  in  order  to  accomplish  any  particular  power 

45.  Davis  v.  Railroad  Co.,  131  48.  Knapp  &  Co.  v.  Tidewater  Coal 
Mass.  258;  Central  Trans.  Co.  v.  Co.  (Conn.  1912),  81  Atl.  1063. 
Pullman's  Palace  Car  Co.,  139  U.  S.  Examine  National  Bank  of  West- 
24,  11  S.  Ct.  478;  Durkee  v.  People  ern  Pennsylvania  v.  Lake  Erie  As- 
ex  rel.  Askren,  155  111.  354,  40  N.  E.  phalt  Co.  (Pa.  1912),  82  Atl.  773, 
626;  Best  Brewing  Co.  v.  Klasson,  holding  that  where  one  seeks  to 
185  111.  37,  57  N.  E.  20;  National  charge  a  corporation  with  liability 
Home  Building  &  Loan  Ass'n  v.  for  an  unauthorized  guaranty  by  its 
Home  Sav.  Bank,  181  111.  35,  54  N.  E.  officers  the  burden  is  upon  him  to 
619;  Marble  v.  Harvey,  92  Tenn.  115.    show  that  the  corporation   received 

46.  Salt  Lake  City  v.  Hollister,  and  retained  the  benefit  of  the  act. 
118  U.  S.  256,  263,  6  S.  Ct.  1055,  Where  note  transferred  after  ma- 
30  L.  Ed.  176.  tnrity.    Where  the  note  of  a  corpo- 

47.  American  Bonding  Co.  v.  City   ration,  made  for  the  accommodation 
of  Ottumwa,  137  Fed.  572,  70  C.  C.  A.   of    a    third    person,    is    transferred 
270.  after  maturity,  the  transferee,  in  or- 
der to  hold  the  maker,  must  show 


^  32(  Suretyship  and  Guakanty.  36 

expressly  conferred/*  Thus,  a  national  bank  may  give  a  guar- 
anty for  the  payment  of  a  note  which  it  indorses  in  order  to  trans- 
fer the  same  to  other  parties,  as  such  action  is  incidental  to  the 
exercise  of  its  power  to  buy  and  sell  commercial  paper, ^" 

§  32,  Principal  Under  Duress. — If  the  principal  is  under 
duress  at  the  time  of  making  a  contract,  it  may  be  avoided  by 
him.  And  if  the  contract  of  suretyship  is  executed  by  the  surety 
under  duress  he  will  not  be  bound.^"-  But  the  general  rule  is  that 
the  surety  cannot  set  up  the  duress  of  his  principal  to  relieve  him 
from  liability  as  surety  when  he  signed  with  knowledge  of  the 
duress.^^  Because  duress  which  will  avoid  a  contract  must  be 
pleaded  by  the  party  who  'acted  under  it  in  making  the  contract.^ 
But  there  are  decisions  to  the  contrary  which  hold  that  a  surety 
may  avoid  the  contract  on  account  of  tlie  duress  of  the  principal.^* 
And  tlie  defense  of  duress  in  the  execution  of  a  note  has  been 
allowed  to  the  surety  because  he  was  the  father  of  the  priucipal.^^ 

When  the  surety  is  ignorant  of  the  duress  of  the  principal  he 

that  his  transferor  was  a  holder  for  Illinois. — Peacock    v.    People,    83 

^alue  in  good  faith  before  maturity.  111.  331;   Plummer  v.  People,  16  111. 

.Jacobus   V.    Jamestown   Mantel   Co.,  358. 

149  App.  Div.  (N.  Y.)   356,  134  N.  Y.  Indiana.— Tucker  v.  State,  72  Ind. 

;Supp.  418.  242. 

49.  Green  Bay  &  M.  R.  R.  Co.  v.  Maine. — Oak  v.  Dustin,  79  Me.  23, 
lUuion  Steamboat  Co.,  107  U.  S.  98,  7  Atl.  815,  1  Am.  St.  Rep.  281. 

2     S.     Ct.     221,     27     L.     Ed.     506;  Massachusetts.  —  Robinson        v. 
Arnot  V.  Railroad  Co.,  67  N.  Y.  315;  Gould,  11  Cush.  55. 
Heim's  Brewing  Co.  v.  Flannery,  137  ^orth   Carolina. — Simms   v.   Bare- 
Ill.  309,  27  N.  E.  286;  Smead  v.  Rail-  foot's  Ex'rs,  3  N.  C.  402. 
road  Co.,  11  Ind.  104.  Compare    Strong    v.    Grannis,    26 
See  §  30  herein.  Barb.     (N.    Y.)     122;     Thompson    v. 

50.  Thomas  v.   City  Nat.  Bank  of  Lockwood,  15  Johns.   (N.  Y.)  256. 
Hastings,  40  Neb.  501,  58  N.  E.  943;  53.  Robinson    v.    Gould,    11    Cush. 
People's    Bank    v.    Bank,    101    U.    S.  (Mass.)  55,  57. 

181,  25  L.  Ed.  907.  54.  Hawes    v.    Marchant,    1    Curt. 

51.  Small  V.  Currie,  2  Drew.  102;  136;  State  v.  Brantley,  27  Ala.  44; 
Ingersoll  v.  Roe,  65  Barb.  (N.  Y.)  Wilkinson  v.  Herd,  65  Mo.  App.  491; 
346.  Owens  v.  Mynatt,  1  Heisk.    (Tenn.) 

52.  United  States.— Hazard  v.  Gris-  675. 

wold,  21  Fed.  178.  55.  Osborn    v.    Bobbins,    36    N.    Y. 

Colorado. — Haney    v.     People,     12  365.     Compare  Strong  v.  Grannis,  26 

Colo.  345,  21  Pac.  39.  Barb.  (N.  Y.)  122;  Gibson  v.  Patter- 
Georgia.— Spicer  V.  State,  9  Ga.  49.  son,  75  Ga.  549. 


37  The  Parties.  §§  3o,  34 

will  not  be  liable,  because  then  he  bocomesi  surety  on  a  contract 
which  was  not  in  contemplation  at  the  time  of  its  execution.^® 
But  where  he  has  full  knowledge  of  the  facts,  duress  of  the  prin- 
cipal does  not  release  him  from  liability.^^ 

§  33.  Non-residents. — Where  the  statute  provides  that  sure- 
ties shall  be  residents  of  the  State  or  county  where  the  contract 
is  executed,  the  statute  is  directory,  and  the  non-resident  surety 
will  be  held  responsible,  and  he  cannot  set  up  his  foreign  domioil 
to  release  him  of  liability.^^ 

§  34.  Surety  and  Guaranty  Companies — Generally. — At  the 
present  time  many  States  have  enacted  laws  for  the  organization 
of  surety  and  guaranty  corporations,  which  can  become  surety, 
and  such  laws  are  constitutional.^^ 

It  is  within  the  power  of  the  legislature  to  authorize  corpora- 
tions to  become  sureties  on  bonds  and  to  prescribe  the  conditions 
under  which  they  may  do  so.^"  Such  corporations  may  be  ac- 
cepted 'as  sole  surety,^^  and  the  grant  of  such  power  to  a  corpora- 
tion to  become  the  sole  surety,  in  no  manner  interferes  with  the 
general  law  in  regard  to  personal  security.^^ 

iSuch  companies  are  to  be  regarded  as  a  convenience  to  the 
community. ^^ 

And  in  a  recent  case  in  Oalifomia  it  is  said  in  holding  an  act 
to  be  constitutional  which  related  to  bonds  of  public  officials: 
'*  The  act  may  reasonably  be  construed  as  one  designed  to  en- 
courage the  giving  by  the  officers  to  whom  it  is  applicable  of  surety 
company   bonds,    rather   than  personal  surety  bonds,   upon    the 

56.  Hazard  v.  Griswold,  21  Fed.  25  Atl.  663;  Steele  v.  Auditor  Gen- 
178;  Graham  v.  Marks,  98  Ga.  67,  25    eral.  111  Mich.  381,  69  N.  W.  738. 

S.   E.   931;    Patterson   v.  Gibson,   81  See  §§   438   et  seq.  herein,   as   to 

Ga.  802,  10  S.  E.  9,  12  Am.  St.  Rep.  surety  companies. 

356 ;  Griffith  v.  Sitgreaves,  90  Pa.  St.  60.  Moffett  v.  Koch,  106  La.  371,  31 

161.  So.  40;  Steel  v.  Auditor  General,  111 

57.  Plummer  v.  People,  16  111.  358;  Mich.  381,  69  N.  W.  738, 

Tucker  v.  State,  72  Ind.  242.  61.  Cramer  v.  Tittle,  72  Cal.  12,  12 

58.  State    v.    Finn,    77    Ala.    100;    Pac.  869, 

School  Directors  v.  Brown,  33  La.  62.  County  Commissioners  of  Cal- 
Ann.  385.  vert  County  v.  Hellen,  72  Md.  603,  20 

59.  Cramer  v.  Tittle,  72  Cal.  12,  12    Atl.  130. 

Pac.  869;  Gans  v.  Carter,  77  Md.  1,       63.  Matter  of  Thurber,  162  N.  Y. 

244,  251,  56  N.  E.  631. 


§    34  SUEETYSIIIP  AND  GuAKANTY.  38 

theory  that  the  public  interests  will  be  better  protected  by  such 
bonds.  While  both  classes  of  bonds  were,  prior  to  the  passage 
of  the  act,  equally  credited,  and  while  either  must  still  be  ac- 
cepted, when  presented  by  a  public  officer,  when  we  take  into 
consideration  the  provisions  of  our  law  relating  to  the  conditions 
and  official  supervision  under  which  surety  companies  may  trans- 
act business,  it  cannot  fairly  be  said  that  the  Legislature  may 
not  reasonably  have  concluded  that,  while  the  personal  surety 
bond  may  still  be  used  at  the  option  of  an  officer,  the  surety  com- 
pany bond  iSi  a  better  and  safer  bond,  so  far  as  the  public  in- 
terests are  concerned,  and  the  giving  of  such  bonds  should  be 
encouraged."  ^* 

64.  San  Luis  Obispo  County  v. 
Murphy  (Cal.  S.  C.  1912),  123  Pac. 
838,  per  Angellotti,  J. 


39,  Execution  of  the  Contkact.  §  35 


CHAPTER   III. 

EXECUTION  OF  THE  CONTRACT. 

Section  35.  Consideration. 

36.  Indorsing  Note  Before  and  After  Execution. 

37.  Surrender  of  Old  Note  for  New  Note. 

38.  The  Consideration  Must  be  Legal. 

39.  Concurrent  Contracts. 

40.  Surety's  Promise  Being  the  Inducement. 

41.  Executed  Contract. 

42.  Extension  of  Time  —  Promise  of  Third  Person  to  Pay. 

43.  Agreement  to  Forbear  for  an  Indefinite  Time. 

44.  An  Agreement  Must  Be  Made  to   Forbear. 

45.  Offer  to  Become  Surety  for  Another. 

46.  Extension  of  Time  —  Agreement  to  Pay  Interest. 

47.  Both  Parties  Must  Be  Bound. 

48.  Extension  of  Time  by  Paying  Interest  —  Contrary  Doctrine. 
48a.  Place  of  Signature. 

49.  Delivery  of  Contract. 

50.  Delivery  in  Escrow. 

51.  Wrongful  Delivery  by  Principal. 

52.  Imperfect  Instrument. 

53.  Surety's  Name  Not  Appearing  in  Body  of  the  Instrument. 

54.  Principal  Not  Signing. 

65.  Alteration  of  the  Instrument. 

56.  Filling  Blanks  — As  to  Surety's  Liability. 

57.  Negotiable  Notes. 

58.  Person  Signing  as  Principal. 

59.  Estoppel  of  Surety  to  Deny  Recitals  in  the  Instrument 
59a.  Estoppel  to  Deny  Validity. 

60.  Denying  Valid  Appointment  of  Principal. 

61.  Sureties  Cannot  Deny  the  Incorporation  of  Corporate  Bodies 

with  Whom  Their  Principal  Deals. 

62.  Denying  Court's  Jurisdiction. 

63.  Attacking  Bond  in  Collateral  Proceedings. 

64.  Relations  After  Judgment. 

65.  Effect  of  Judgment  on  Surety. 

^  35.  Consideration. — ^^A  contract  of  surety  differs  in  no  re- 
spect from  otlier  contracts,  and  must  be  supported  by  a  sufficient 
consideration.^     The  consideration  may  be  some  benefit  or  advan- 

1.  Arkansas.— Kissi re  v.  Plunkett-  S.  W.  567;  Barton  v.  Haltom,  9S 
Jarrell  Grocer  Co.    (Ark.  1912),  145   Ark.  ♦631,  125  S.  W.  418. 


§  35  Suretyship  and  Guaeanty.  40 

tage  to  the  principal  or  surety  or  some  disadvantage.  Whajt  is  a 
sufficient  consideration  to  support  a  promise  of  the  principal  will 
sustain  the  concurrent  promise  of  the  surety.^  The  consideration 
need  not,  however,  be  an  advantage  received  by  the  surety  him- 
s'^lf,  it  being  sufficient,  t<'.  support  such  promise  that  it  is  founded 
upon  The  consideration  then  received  by  the  principal  debtor,  or 

California. — Kellogg  v.  Lopez,  145  into  or  execute  the  contract  after 
Cal.  497,  78  Pac.  1056.  his  bid  has  been  accepted,  a  bond 

Illinois.  —  Chicago  Sash,  Door  &  accompanying  his  bid  is  only  en- 
Blind  JMfg.  Co.  V.  Haven,  195  111.  474,  forceable  to  the  extent  to  which  he 
63  N.  E.  158,  affirming  Haven  v.  Chi-  was  liable  to  the  city  under  such 
cago  Sash,  Door  &  Blind  Mfg.  Co.,  charter  provision  for  refusing  to 
96  HI.  App.  92.  execute  his  contract.     City  of  New 

Indiana. — Post  v.  Losey,  111  Ind.  York  v.  Seely-Taylor  Co.,  149  App. 
74,  12  N.  E.  121.  Div.   (N.  Y.)   98,  133  N.  Y.  Supp.  808. 

Kansas. — Briggs  v.  Latham,  36  2.  United  States. — United  States  v. 
Kan.  205,  13  Pac.  129.  Linn,  15  Pet.  290,  10  L.  Ed.  742. 

Missouri. — Lowenstein  v.  Sorge,  75  Illinois. — Pritchett  v.  People,  1 
Mo.  App.  281.  Gil.  525;  Green  v.  Shaw,  66  111.  App. 

New  York. — City  of  New  York  v.    74. 
Seely  Taylor  Co.,  149  App.  Div.  98,       Indiana. — Lackey     v.     Boruff,    152 
133  N.  Y.  Supp.  808.  Ind.  371,  53  N.  E.  412. 

Ohio. — Merchants'  Nat.  Bank  v.  Kentucky. — Bassett  v.  O'Neil  Coal 
Ryan,  67  Ohio  St.  448,  66  N.  E.  526.    &  Coke  Co.,  140  Ky.  346,  131  S.  W. 

Oregon. — See  Hughes  v.  Ladd,  42   25. 
Ore.  123,  69  Pac.  548.  New   Hampshire. — Savage  v.  Fox,. 

Pennsylvania. — Court  Vesper,  No.   60  N.  H.  17. 
69,  Foresters  of  America  v.  Fries,  22        New    York. — Leonard    v.    Vreden- 
Pa.  Super.  Ct.  250.  burg,  8  Johns.  29. 

See  §  39  herein,  as  to  concurrent  Ohio. — Merchants'  National  Bank 
contracts.  v.   Ryan,  67   Ohio  St.   448,  66   N.  E. 

Failure  of  consideration  in  case  of  526. 
bond  given  by  a  bank  with  sureties  South  Dakota. — Bower  v.  Jones,  26 
to  a  State  treasurer  to  secure  cer-  S.  D.  414,  128  N.  W.  470. 
tain  moneys  to  be  deposited  by  the  An  obligation  as  surety  for  a  debt 
State  with  the  bank,  held  not  to  be  is  sufficient  consideration  for  the 
shown  by  failure  to  make  future  de-  subsequent  signing  of  a  note  as 
posits.  Hurlburt  v.  Kephart,  50  surety  therefor.  Frick  Co.  v.  Hoff, 
Colo.  353,  115  Pac.  521.  26  S.  D.  360,  128  N.  W.  495. 

An  agreement  by  a  surety  to  pay  Knowledge  that  signer  an  accom- 
any  sum  for  which  his  principal  is  modation  party.  An  accommodation 
not  liable  is  without  consideration,  party  is  not  relieved  from  liability 
Thus,  where  the  charter  of  a  city  because  the  holder  knew  him  to  be 
provides  what  damages  shall  be  paid  only  an  accommodation  party  and 
by    a   bidder   for   refusing   to   enter   want  of  consideration  is  no  defense 


41  Execution  of  the  Contkact.         §  35 

that  by  such  promise  a  dis'advantage  has  resulted  to  the  creditor.' 
There  is  a  sufficient  consideration  to  support  a  written  contract 
or  agreement  to  pay  the  debt  of  another,  if,  acting  on  the  faith  of 
such  agreement  or  contract,  the  party  with  whom  it  was  made 
parted  with  his  property/  'So  an  extension  of  the  time  of  pay- 
ment is  a  sufficient  consideration  for  the  promise  of  a  third  party, 
as  surety,  to  pay  the  debt.^  And  if  the  surety  agreed  to  such 
extension  he  is  bound,  and  his  consent  may  be  implied.^ 

And  where  one  who  has  a  lien  upon  property  surrenders  pos- 
session of  the  property  to  enable  another  to  attach  the  same,  such, 
surrender  is  a  sufficient  consideration  to  support  a  bond  executed 
by  the  latter  as  principal  and  a  third  person  as  surety  to  secure 
the  amount  of  such  lien.^ 

Likewise  where  the  payment  of  a  note  is  secured  by  stock 
pledged  as  collateral,  its  surrender  is  a  sufficient  consideration  for 
the  signature  of  one  as  surety.^  After  the  surety  is  released,  he 
may,  without  any  new  consideration,  revive  his  liability  by  a  new 
and  distinct  promise  if  not  contrary  to  statute  f  and  especially  so 
if  the  new  promise  be  in  writing.^'*  And  though  performance  of 
a  contract  had  been  waived  by  the  principal  a  subsequent  per- 
formance was  held  to  be  a  consideration  for  the  signing  of  a  note 
by  one  as  surety.^^ 

If  the  contract  is  void  the  surety  is  not  liable.  Thus,  where 
a  corporation  becomes  a  surety,  which  is  ultra  vires  and  void,  it 
cannot  he  held  liable,  and  if  it  had  given  a  mortgage  the  land 
does  not  pass,  but  the  title  still  remains  in  the  corporation.^^ 

to    an    action    against    him.     Many,  8.  Zuendt    v.     Doerner,     101    Mo. 

Blanc  &  Co.  v.  Krueger,  153  111.  App.  App.  528,  73  S.  W.  873. 

327.  9.  Bank  v.  Whitman,  66   111.  331; 

3.  Kissire      v.       Plunkett-Jarrell  Hooper  v.  Pike,  70  Minn.  84,  72  N.  W. 
Grocer   Co.    (Ark.    1912),   145    S.   W.  829. 

567;  Williams  v.  Perkins,  21  Ark.  18.  10.  Fowler  v.  Brooks,  13  N.  H.  240 

4.  Small  Co.  v.  Claxton,  1  Ga.  App.  Bramble  v.  Ward,  40  Ohio  St.  267 
83,  57  S.  E.  977.  Smith  v.  Winter,  4  Mees.  &  W.  454 

5.  Hooper  v.  Pike,  70  Minn.  84,  72  Stevens  v.  Lynch,  12  East.  8. 

N.  W.  829.  11.  Merchants'    National    Bank    v. 

See  §§  42-44  herein.  Ryan,  67  Ohio  St.  448,  66  N.  E.  526. 

6.  Bank  v.  Whitman,  66  111.  331;  12.  First  Nat.  Bank  of  Gadsden  v. 
Clark  V.  Devlin.  3  Bos.  &  Pul.  363.  Winchester,  119  Ala.  168,  24  So.  337. 

7.  Davis,  Belau  &  Co.  v.  National  As  to  corporations  as  sureties,  see 
Surety  Co.,  139  Cal.  223,  72  Pac.  1001.  §§  28-31  and  438  et  seq.  herein. 


§  36  Suretyship  and  Guaranty.  42 

And  an  agreement  bj  a  surety  to  pay  any  sum  for  which  his 
principal  is  not  liable  is  held  to  be  without  consideration.^^ 

As  between  the  sureties  and  the  principal,  the  consideration 
which  supports  the  undertaking  of  the  sureties  is  the  implied 
promise  of  the  principal  to  indemnify  them  for  becoming  parties 
to  the  obligation/'* 

§  36.  Indorsing  Note  Before  and  After  Execution. — A  guaran- 
tor or  surety  indorsing  a  note  before  its  delivery  to  the  payee, 
needs  no  new  consideration  to  support  such  suretyship,  because 
his  and  the  principal's  contract  were  concurrent  and  simultan- 
eous.^^ iSuch  indorsement  becomes  and  is  a  part  of  the  original 
contract,  and  therefore  needs  no  new  consideration.^^  iSo  where 
a  landlord  and  tenant  executed  a  lease  which  the  landlord  re- 
fused to  accept  unless  and  until  a  surety  for  the  performance  of 
the  covenants  therein  had  been  obtained  and  the  delivery  of  the 
lease  did  not  occur  until  after  the  surety  had  signed  it,  it  was  held 
that  until  such  delivery  the  contract  of  letting  was  incomplete, 
■even  though  the  tenant  in  the  meantime  may  have  entered  into 
the  occupancy  of  the  premises  and  paid  an  installment  of  rent  and 
that  the  delivery  of  the  lease  being  contemporaneous  with  the  de- 
livery of  the  surety's  obligation  each  contract  became  completed 
at  'the  same  time  and  that  the  consideration  which  supported  the 
principal  contract  supported  the  subsidiary  one.^^ 

13.  City  of  New  York  v.  Seely-Tay-  paper     to     bind     him.       Stroud     v. 
lor  Co.,  149  App.  Div.  (N.  Y.)  98,  133  Thomas,  139  Cal.  274,  72  Pac.  1008. 
N.  Y.  Supp.  808.  Concurrent    contracts,    see    §    39 

14.  Alalia  Ilia. — Martin    v.    Ellerbe,  herein. 

70  Ala.  326.  16.  Illinois.— Joslyn    v.    Collinson, 

Delaware.— Miller  v.  Stout,  5  Del.  26  111.  61. 

Ch.  263.  Indiana.— Brownlee   v.   Lowe,   117 

Maine.— Thompson    v.    Thompson,  Ind.   420,   20   N.   E.   301;    Bridges   v. 

19  Me.  244;  Howe  v.  Ward,  4  Me.  195.  Blake,  106  Ind.  332,  6  N.  E.  833;  Fa- 

Massaclmsetts. — Appleton   v.   Bas-  vorite  v.  Stidham,  84  Ind.  423. 

■com,  3  Mete.  169.  Iowa. — Briggs  v.  Downing,  48  Iowa 

Tennessee. — Morrow  v.  Morrow,  2  550. 

Tenn.  Ch.  365.  Massaclmsetts. — Green     v.     Shep- 

15.  Dillman  v.  Nadelhoffer,  160  111.  herd,  5  Allen  589. 

121,  43  N.  E.  378.  Nebraska.— Barnes  v.  Van  Keuren, 

See  §  347.  31  Neb.  165,  47  N.  W.  848. 

Sii^nin??  l»j  snrety  after  principals  17.  Faust  v.  Rodelheim,  77  N.  J. 

had  siisned  note  held  to  be  concur-  L.  740,  73  Atl.  491. 

rent    with    their    execution    of    the 


43 


Execution  of  the  Contract. 


§  36 


If  the  undertaking  of  suretyship  is  entered  into  at  a  time  sub- 
sequent to  the  execution  by  the  principal,  it  is  a  distinct  contract 
and  must  be  supported  by  a  consideration  of  its  own/^  .So  where 
a  person  signs  a  note  as  surety,  after  its  delivery  to  the  payee, 
the  transaction  must  be  supported  by  a  new  consideration  in  order 
to  hold  the  surety.^^  Thus,  where  a  note  has  been  executed  by  the 
principal,  a  party  signing  it  as  surety  at  a  time  subsequent  to 
the  incurring  of  the  obligation,  without  any  new  or  distinct  con- 
sideration passing  to  the  surety,  is  not  bound.^"    So  a  subsequent 


18.  Bebee  v.  Moore,  3  McLean  (U. 
S.)  387. 

See  §  41  herein. 

19.  Alabama. — Savage  v.  First  Na- 
tional Bank,  112  Ala.  508,  20  So.  398. 

Illiuois. — Anderson  v.  Norvill,  10 
111.  App.  240;  Joslyn  v.  Collinson,  26 
111.  61. 

Indiana. — Favorite  v.  Stidham,  84 
Ind.  423. 

Iowa. — Briggs  v.  Downing,  48 
Iowa  550. 

Kentucky. — Jackson  v.  Cooper,  19 
Ky.  Law  Rep.  9,  39  S.  W.  39. 

Maine. — Sawyer  v.  Fernold,  59  Me, 
500. 

Mississippi. — Clopton  v.  Hall,  51 
Miss.  482. 

Missouri. — Lowenstein  v.  Sorge,  75 
Mo.  App.  281, 

Compare  Deposit  Bank  of  Sulphur 
V.  Peck,  110  Ky.  579,  23  Ky.  Law 
Rep.  19,  62  S.  W.  268,  96  Am.  St.  Rep. 
466,  where  delivery  accepted  on  con- 
dition certain  person  should  sign  as 
surety. 

It  may  be  conceded  that  when  a 
promissory  note  has  been  delivered 
to  the  payee  and  the  only  considera- 
tion therefor  is  one  passing  from  the 
payee  to  the  maker  of  the  note,  a 
person  who  subsequently  signs  or 
guarantees  payment  of  the  note  is 
not  bound  without  a  new  considera- 
tion. Frick  Co.  v.  Hoff,  26  S.  D.  360, 
128  N,  W.  495. 


When  rule  not  applicable.    In  an 

action  against  a  surety  on  a  note,  it 
appeared  that  defendant  had  been 
agent  of  the  plaintiff,  and  that  a 
traveling  salesman  had  secured  an 
order  within  his  territory.  The  order 
was  carried  to  defendant,  who,  to 
secure  his  commission,  was  obliged 
to  see  to  the  delivery  of  the  goods 
and  the  payment  therefor,  so  he  in- 
dorsed it  and  filled  out  the  guaranty 
of  payment.  The  traveling  sales- 
man delivered  the  machinery  and 
accepted  a  note  from  the  buyer, 
which  the  defendant  signed  as 
surety.  Held,  as  it  was  his  duty  to 
see  to  the  collection  of  the  price,  and 
as  the  transaction  was  in  his  terri- 
tory, that  he  did  not  sign  this  note 
without  consideration,  and  the  rule 
that,  when  a  promissory  note  has 
been  delivered  to  the  payee,  the  sole 
consideration  therefor  passing  from 
the  payee  to  the  maker,  a  person 
who  subsequently  signs  as  surety  Is 
not  bound  without  a  new  considera- 
tion, does  not  apply.  Frick  Co.  v. 
Hoff,  26  S.  D.  360,  128  N.  W.  495. 

20.  Wipperman  v.  Hardy,  17  Ind. 
App.  142,  46  N.  E.  537;  Joslyn  v.  Col- 
linson, 26  111.  61;  Lowenstein  v. 
Sorge,  75  Mo.  App.  281. 

See  §  347. 

Examine  Frick  Co.  v.  Hoff,  26  S.  D. 
360,  128  N.  W.  495. 


§  37  Suretyship  and  Guaranty.  44 

indorsement  without  recourse  by  the  payee  of  a  note  at  the  re- 
quest of  one  who  had  cashed  it  does  not  make  the  payee  a  party 
thereto  where  there  had  been  no  delivery  of  the  instrument  to  him, 
no  acceptance  thereof  by  him  and  no  consideration  from  him  to 
the  makers.^^ 

Where  a  corporation  to  secure  its  own  note  payable  at  a  day 
certain  gave  to  the  lender  at  the  same  time  its  blank  note  indorsed 
by  the  defendant,  the  latter  thereby  became  surety  for  the  pay- 
ment of  the  principal  note  according  to  its  tenor  the  same  as 
though  he  had  been  an  indorser  thereof. ^^ 

§  37,  Surrender  of  Old  Note  for  New  Note. — A  surrender  of 
the  old  promissory  note  is  a  sufficient  consideration  for  a  new  one 
executed  by  the  surety  and  principal,  although  the  surety  had 
been  released  from  payment  of  the  old  note  by  the  action  of  the 
principal.^"  iSo  giving  up  a  note  against  a  third  person,  is  a  suf- 
ficient consideration  for  a  promise  to  pay  the  amount  of  it.^* 
iind  where  both  principal  and  surety  who  were  ignorant  of  the 
law,  in  good  faith,  supposed  the  surety  was  liable  for  the  old 
note,  the  surety  is  liable  on  the  new  note,  though  he  had  been  dis- 
charged on  the  old  note.^^ 

21.  Chitwood  V.  Hatfield,  136  Mo.  of  Black  River  Falls  v.  Jones,  92 
App.  688,  118  S.  W.  1192.  Wis.  36,  65  N.  W.  861. 

22.  Union  Trust  Co.  v.  McCrum,  England.— Stevens  v.  Lynch,  12 
145  App.  Div.   (N.  Y.)   409,  129  N.  Y.  East.  88. 

Supp.  1078.  Where  a  surety  signs  a  note  with 

23.  California. — Stroud  v.  Thomas,  his  principal  in  renewal  of  a  former 
139  Cal.  274,  72  Pac.  1008,  96  Am.  St.  note  executed  by  him,  such  renewal 
Rep.  111.  note  does  not  witness  a  new  indebt- 

Iiuliana. — Brewster    v.    Baker,    97  edness,  and  the  liability  of  the  prin- 

Tnd.  260.  cipal  to  such  surety  was  contracted 

Michigan. — First  National  Bank  v.  when    the    original    note    was    exe- 

Johnson,  133  Mich.  700,  95  N.  W.  975,  cuted.     Griffin  v.  Long,  96  Ark.  268, 

10  Det.  Leg.  N.  403.  131  S.  W.  672. 

New  York. — Jaycox  v.  Trembly,  42  24.  Brewster  v.  Baker,  97  Ind.  260; 

App.  Div.  416,  59  N.  Y.  Supp.  245.  Erie  County   Savings   Bank  v.   Coit, 

Texas.— Bell  v.  Boyd,  76  Tex.  133.  104   N.   Y.   532,   11   N.  E.   54;    Short- 

13  S.  W.  232.  redge  v.  Cheek,  1  A.  &  E.  57. 

Vermont. — Churchill     v.     Bradley,  25.  Churchill    v.    Bradley,    58    Vt, 

58  Vt.  403,  5  Atl.  189,  56  Am.  Rep.  403,  5  Atl.  189.    This  is  on  the  prin- 

553.  ciple  that  ignorance  of  the  law  ex- 

Wisconsin, — First    National    Bank  cuses  no  one. 


45  Execution  of  the  iContiuict.  §§  38,  39 

§  38.  The  Consideration  Must  be  Legal, — The  consideration 
must  be  legal  and,  of  course,  not  opposed  to  public  policy.  Thus, 
a  note  signed  by  one  as  surety  upon  the  promise  that  the  maker 
thereof  would  not  be  prosecuted  for  embezzlement,  being  based 
upon  an  illegal  consideration,  is  void.^^  And  a  surety  upon  a 
note  may  show  in  defense  to  an  action  thereon  that  it  was  given 
for  the  purpose  of  defrauding  creditors,  which  fact  was  known  to 
the  payee  but  unknown  to  him.^^  But  if  the  principal's  debt  is 
based  upon  an  illegal  consideration,  the  delivery  of  the  money 
due  upon  the  contract,  to  the  surety  to  be  paid  to  the  payee,  and 
he  agrees  thus  to  pay  the  note  upon  which  he  is  surety — make  the 
surety  liable  to  pay  the  money  as  agreed,  though  the  original  con- 
tract was  illegal.^^ 

So  it  has  been  decided  that  defendants  having  enjoyed  the  bene- 
fits of  a  bond,  are  estopped  to  deny  its  validity  even  though  it  is 
founded  on  an  illegal  license  to  sell  liquor.^^ 

§  39.  Concurrent  Contracts. — In  order  to  bind  the  surety,  the 
general  rule  is  that  his  contract  must  be  concurrent  with  the 
principal's.  So  when  the  surety's  contract  is  contemporaneous 
with  the  principal  contract,  it  is  not  necessary  that  there  should 
be  a  separate  and  distinct  consideration  from  that  upon  which  the 
latter  contract  was  executed.^**  And  if  the  consideration  is  suffic- 
ient to  support  the  principal  contract,  it  will  be  sufficient  to  sup- 
port the  contract  of  suretyship.^^ 

26.  Rouse    v.    Mohr,    29    111.    App.    Cal.   274,   72   Pac.    1008,   96   Am.    St. 
321;    Gorham    v.    Keyes,    137    Mass.   Rep.  111. 

583 ;  Board  v.  Thompson,  33  Ohio  St.  Maine. — Hughes   v.   Littlefield,    18 

321.  Me.  400. 

27.  Goodwin  v.  Kent,  201  Pa.  41,  50  Massachusetts.— Bickford  v.  Gibbs, 
Atl.  290.  8  Gush.  154. 

28.  Armstrong  v.  Toler,  11  Wheat.  New    York.  —  McNaught    v.    Mc- 
(U.  S.)  258,  6  L.  Ed.  468;  Barker  v.  Claughry,  42  N.  Y.  22. 

Parker,  23  Ark.  390.     See  Farmer  v.  PennsjiTania. — In  re  Hughes'  Es- 

Russell,  1  Bos.  &  Pul.  296.  tate,  13  Pa.  Super.  Ct.  240. 

29.  Town    of    Point    Pleasant    v.  South  Dakota.— Bower  v.  Jones,  26 
Greenlee,  63  W.  Va.  207,  60  S.  E.  601.  S.  D.  414,  128  N.  W.  470. 

See  Curry  v.  Morrison,  40  Pa.  Super.       See  §§  35  and  41  herein. 

Ct.  301.  Indorsing   note   before   and    after 

30.  United  States. — Swift  v.  Tyson,   execution,  see  §  36  herein. 

16  Pet.  1,  10  L.  Ed.  865.  81.  Savage  v.  Fox,  60  N.  H.  17. 

fallfornia,— Stroud  v.  Thomas,  139       See  §  35  herein. 


§  40         Suretyship  and  Guaeanty.  46 

So  if  a  party  signs  as  a  guarantor  or  surety,  a  note  iDefore  its 
delivery  to  tlie  payee,  the  consideration  of  the  note  will  be  pre- 
sumed to  be  the  consideration  of  the  suretyship.^^ 

The  question  of  consideration  in  cases  of  suretyship  may  be 
divided  into  four  classes:  (1)  Cases  in  which  the  promise  of  the 
surety  is  collateral  to  the  principal  contract,  but  is  made  at  the 
same  time  and  becomes  an  essential  ground  of  the  suretyship  given 
to  the  principal  debtor.  Hence,  there  is  no  need  of  any  other 
consideration  to  support  the  contract  of  suretyship.^^  (2)  Cases 
in  which  collateral  undertaking  is  subsequent  to  the  creation  of 
the  debt  and  is  not  an  inducement  to  it,  though  the  subsisting  lia- 
bility is  the  ground  of  the  promise,  without  a  distinct  or  uncon- 
nected inducement;  therefore  there  must  'be  a  further  considera- 
tion, having  an  immediate  respect  to  such  liability  for  the  con- 
sideration of  the  original  debt  will  not  attach  to  this  subsequent 
promise.^*  (3)  Cases  where  the  promise  to  pay  a  debt  of  an- 
other arises  out  of  a  new  and  original  consideration,  of  benefit 
or  harm  moving  between  the  contracting  parties;  so  when  the 
surety  subsequently  signs  the  instrument  after  delivery,  he  will 
be  bound  if  he  receives  a  new  and  sufficient  consideration  for  his 
act.^^  (4)  Oases  where  the  surety's  promise  is  the  inducement 
of  completing  the  contract,  though  he  signs  subsequently  to  the 
execution.^® 

These  four  classes  of  cases  cover  the  law  with  respect  to  a 
surety's  liability. 

§  40.  Surety's  Promise  Being  the  Inducement. — A  moral  obli- 
gation is  not  sufficient  to  support  a  contract  of  suretyship ;  but 
when  the  contract  has  been  entered  into  at  the  request  of  the 
surety,  the  consideration  of  his  promise,  though  passed  or  exe- 
cuted, will  be  continuing  and  valuable,  and  when  he  signs,  as 
surety,  the  contract,  it  is  a  complete  and  full  execution  of  the 

82.  Parkhurst  v.  Vail,  73  111.  343;  Fish  v.  Hutchinson,  2  Wils.  94; 
Dillman  v.  Nadelhoffer,  160  111.  121,  Charter  v.  Beckett,  7  Term  R.  201; 
43  N.  E.  378;  Moies  v.  Bird,  11  Mass.   Wain  v.  Walters,  5  East  10. 

436.  35.     Leonard     v.     Vredenburg,     8 

83.  Dillman  v.  Nadelhoffer,  160  111.    Johns.   (N.     Y.)   29. 

121,  43  N.  E.  378;  Bickford  v.  Gibbs,       36.  Jackson  v.  Jackson,  7  Ala.  791; 
8  Cush.  (Mass.)  154.  Russell  v.  Mosley,  3  Brod.  &  B.  211. . 

34.  Parkhurst  v.  Vail,  73  111.  343; 


47  Execution  of  the  Contract.         §  41 

promise  upon  that  consideration,  because  the  signature  connected 
with  the  original  contract  constitutes  one  entire  contract,  and  the 
surety  is  bound." 

A  consideration  which  is  executed  is  not  sufficient  to  support  a 
subsequent  promise,  unless  the  act  was  done  at  the  request  of  the 
party  promising,  for  then  the  promise  is  not  a  naked  one,  but 
couples  itself  with  the  precedent  request,  and  is  therefore  founded 
on  a  sufficient  consideration.  The  general  rule  is  that  a  passed 
or  executed  consideration  is  not  sufficient  to  sustain  a  promise 
founded  upon  it,  unless  the  consideration,  though  passed,  was  done 
or  performed  at  the  request  of  the  party  promising.  Without 
such  previous  request,  a  subsequent  promise  has  no  legal  validity^ 
because  the  consideration  being  entirely  completed  and  exhausted, 
it  cannot  be  said  that  it  would  not  have  been  made  or  given  but 
for  the  promise  which  is  subsequent  and  independent.  But  where 
the  consideration  and  the  promise  founded  upon  it,  are  simul- 
taneous, and  the  whole  agreement  is  completed  at  once ;  and  where 
the  consideration  is  to  do  a  thing  in  the  future,  the  promise  rests 
on  a  sufficient  foundation,  and  it  binds  the  party  who  makes  it.^* 
Thus,  if  one  loans  money  to  another,  and  at  a  subsequent  time  a 
third  party  who  did  not  request  the  loan,  and  is  not  benefited  by 
it,  promises  to  see  that  it  is  paid,  his  promise  is  void  because  no 
consideration  passes  from  the  promisee  to  him.  But  if  the  prom- 
isor requests  the  loan,  or  if  his  promise  is  made  previous  to  the 
loan,  or  at  the  same  time,  then  it  will  be  supposed  that  the  loan 
is  made  because  of  the  promise,  which  is  a  sufficient  consideration 
to  bind  the  third  party  or  surety.^^  The  consideration  must  be 
at  the  time  the  promise  is  made,  either  wholly  or  in  part  executory^ 
in  order  to  bind  the  third  party  who  agrees  to  pay  the  debt.*" 

§  41.  Executed  Contract. — Where  the  consideration  is  wholly 
executed  and  no  part  of  it  is  executory,  and  runs  only  to  the 

87.  Lackey  v.  Boruff,  152  Ind.  371,  38.  Williams   v.   Perkins,   21   Ark. 

53  N.  E.  412;  Paul  v.  Stackhouse,  38  18. 

Pa.  St.  3C2.  39.  Jackson  v.  Jackson,  7  Ala.  791; 

As  a  general  rule,  the  considera-  Payne  v.  Wilson,  1  Man.  &  Ry.  708; 

tion  which  binds  a  surety  must  be  Bailey  v.  Croft,  4  Taunt.  611;  Morley 

executory,  but,  when  the  thing  was  v.  Boothby,  10  J.  B.  Moore,  395;  Rus- 

done  at  the  request  of  the  surety,  a  sell  v.  Mosley,  3  Brod.  &  B.  211. 

past  consideration  binds  him.    Lain-  40.  Bank  v.  Coster,  3  N.  Y.  202. 
gor  V.  Lowenthal,  151  111.  App.  599. 


§  42  Suretyship  and  Guaiianty.  48 

principal,  a  subsequent  promise  by  a  tbird  party  is  void.*^  Where 
a  note  has  already  been  executed  and  delivered,  and  then  a  third 
partv  signs  as  surety,  there  must  be  a  new  consideration  to  sus- 
tain the  surety's  promise.  If  there  be  no  new  consideration  in 
such  case  the  surety  will  not  be  liable/^  So  where  a  collateral 
undertaking  of  a  guarantor  or  surety  is  subsequent  to  the  creation 
of  the  debt,  and  is  not  the  inducement  leading  to  the  formation 
of  the  contract,  although  the  consideration  need  not  be  expressed 
in  writing,  yet  there  must  be  some  consideration  shown  having 
an  immediate  respect  to  such  liability ,^^  for  such  subsequent  surety 
or  guaranty  requires  a  distinct  consideration  to  support  such  en- 
gagement/* 


§  42.     Extension  of  Time — Promise  of  Third  Person  to  Pay. — 

A  promise  to  forbear  the  collection  of  a  pre-existing  debt,  will  be 
no  consideration  for  the  promise  of  a  third  person  to  pay  it,  un- 
less it  be  shown  that  such  forbearance  was  actually  granted  upon 
the  faith  of  such  third  person's  promise.^^     So  the  suspension  of 

41.  AIab<iiua. — Savage  v.  First  Na-  Consideration  for  mortgage  to  in- 

tional  Bank,  112  Ala.  508,  20  So.  398.  demnify    sureties.      The    contingent 

Illinois. — Chicago  Sash,  Door  &  B.  liability  of  a  principal  to  the  sureties 

Mfg.  Co.  V.  Haven,  195  111.  474,  63  N.  upon  his  bond  is  a  sufficient  consid- 

E.    158;    Underwood   v.   Hossack,  38  eration  to  support  a  mortgage  given 

111.  208.  to  indemnify  such  sureties  after  exe- 

Indiana. — Coffin   v.   University,   92  cution  and  delivery  of  the  bond  and 

Ind.  337;  Wells  v.  Ross,  77  Ind.  1.  before  a  breach.     County  of  Harlan 

Kentucky. — Jackson  v.  Cooper,  19  v.   Whitney,   65   Neb.    105,   90   N.   W. 

Ky.  Law  Rep.  9,  39  S.  W.  39.  993. 

Massachusetts. — Pratt   v.   Hedden,  42.  Fuller    v.    Scott,    8    Kan.    25; 

121  Mass.  116.  Thompson  v.  Gray,  63  Me.  228;  Lee 

Missouri. — Lafayette  Mutual  Bldg.  v.  Wisner,  38  Mich.  82. 

Ass'n  V.  Kleinhoffer,  40  Mo.  App.  388.  See  §  36  herein. 

Nebraska. — Barnes  v.  Van  Keuren,  43.  Harris  v.  Harris,  180  111.  157, 

31  Neb.  165,  47  N.  W.  848.  54  N.  E.  180. 

New     York.  —  McNaught    v.     Me-  44.  Nichols  &  Shepard  Co.  v.  Ded- 

Claughry,  42  N.  Y,  22.  rick,   61   Minn.   513,   63  N.   W.   1110; 

Texas. — Bluff    Springs    Mercantile  Lowenstein   v.    Sorge,   75   Mo.   App. 

Co.   V.   White    (Civ.   App.)    90   S.  W.  281. 

710.  45.  Savage  v.  First  National  Bank, 

See  as  to  indorsement  of  note  be-  112  Ala.  508,  20  So.  398;   Jackson  v. 

fore  and  after  execution  and  deliv-  Jackson,    7    Ala.    791;    Harwood    v. 

ery,  §  39  herein.  Kiersted,  20  111.  App.  367. 


491  Execution  of  the  Conteact.  §  43^ 

the  right  of  the  creditor  to  enforce  payment  of  his  debt  to  a  future 
date  is  a  sufficient  consideration  for  the  promise  of  a  third  per- 
son to  pay  it/^  And  so  where  one  who  has  the  property  of  a 
debtor  under  his  control,  executes  a  promissory  note  at  the  debtor's 
request  payable  to  one  of  the  latter's  creditors,  which  is  accepted 
by  such  creditor  in  satisfaction  of  his  debt,  the  note  is  based  upon 
sufficient  consideration."  And  so  an  agreement  to  extend  the  time 
of  payment  of  a  debt  is  a  sufficient  consideration  for  the  execu- 
tion by  a  third  party  of  his  note  to  the  creditor  as  collateral  se- 
curity for  the  payment  of  such  debt,^^  or  for  his  signing  a  note 
as  surety  therefor/^ 

§   43,     Agreement  to   Forbear   for   an    Indefinite   Time. — An 

agreement  to  forbear  for  an  indefinite  time,  and  actual  forbear- 
ance for  a  reasonable  time,  is  a  sufficient  consideration  for  the 
surety's  undertaking.  If  no  specific  time  is  fixed  by  the  agree- 
ment of  the  parties,  the  law  presumes  that  a  reasonable  time  was 
intended.^"     So  the  taking  of  a  new  security  payable  at  a  future 

An  agreement   to   forbear   for   a  v.  Ford,  55  Hun  (N.  Y.)  479,  8  N.  Y. 

reasonable  or  specified  time  is  a  suf-  Supp.  719. 

ficient  consideration.    Jones  v.  Britt,  48.  Pratt  v.  Hedden,  121  Mass.  113; 

168  Fed.  852,  94  C.  C.  A.  264.  Linton  v.  Chestnutt-Gibbons  Grocer 

46.  United  States.— Jones  v.  Britt,  Co.  (Okla.  1911),  118  Pac.  385. 
168  Fed.  852,  94  C.  C.  A.  264.  See  §§  113  et  seq.,  363  et  seq. 

Kentucky. — Dow-Hayden    Grocery  49.    Dow-Hayden    Grocery    Co.    v. 

Co.  V.  Muncy,  24  Ky.  Law  Rep.  2255,  Muncy,  24  Ky.  Law  Rep.  2255,  73  S. 

73  S.  W.  1030.  W.  1030;   Hannay  v.  Moody,  31  Tex. 

Massachusetts.— Pratt  v.  Hedden,  Civ.  App.  88,  71  S.  W.  325. 

121  Mass.  116.  Where,  in  consideration  of  the  ex- 
Michigan. — Lee  V.  Wisner,  38  Mich,  tension  of  the  time  of  payment  of  a 

82.  note,   a  person    signs   the   same   aa 

Minnesota.  —  Hooper    v.    Pike,    70  surety,  he  is  bound  thereby.   Rumley 

Minn.  84,  72  N.  W.  829,  68  Am.  St.  Co.  v.  Milcher,  23  Ky.  Law  Rep.  1745, 

Rep.  512.  66  S.  W.  7. 

Nebraska, — Barnes  v.  Van  Keuren,  An  indorsement  of  notes  is  sup- 

31  Neb.  165,  47  N.  W.  848;   Kansas  ported  by  a  sufficient  consideration 

Mfg.  Co.  V.  Gandy,  11  Neb.  448,  9  N.  where  made  for  the  purpose  of  se- 

W.  569.  curing  an  extension  of  an  indebted- 

NcTada. — White  Sewing  Mach.  Co.  ness  and  to  prevent  a  default  in  a 

V.  Fowler,  28  Nev.  94,  78  Pac.  1034.  mortgage.     Kissire  v.  Plunkett- Jar- 
Texas.— Hannay  V.  Moody,  31  Tex.  rell  Grocer  Co.    (Ark.   1912),   145   S. 

■Civ.  App.  88,  71  S.  W.  325.  W    567. 

47.  Moies   v.   Bird,   11   Mass.    436;  50.  Elton  v.  Johnson,  16  Conn.  253; 
Jaffay  v.  Brown,  75  N.  Y.  393;  Clune  Moore  v.  McKenney,   83   Me.   80,  21 

4 


§§  44,  45  Suretyship  and  Guaranty.  50 

date,  by  operation  of  law  and  without  any  specific  agreement  ta 
that  effect,  imposes  on  the  creditor  the  duty  of  waiting  for  his- 
pay  until  the  new  security  matures.^^  It  is,  however,  decided 
that  an  agreement,  indefinite  in  every  aspect,  and  involving  no  en- 
forceable obligation  cannot  be  deemed  a  new  consideration  which 
will  support  a  contract  of  suretyship.^^ 

§  44.  An  Agreement  Must  be  Made  to  Forbear. — A  promise 
to  pay  the  debt  of  another,  although  in  wrting,  is  not  enforcible, 
unless  founded  upon  a  consideration.  Thus,  where  a  promise  iS' 
to  pay  an  overdue  debt,  mere  forbearance  without  agreement  to 
that  effect,  is  not  a  consideration.^^  There  must  be  an  acceptance 
of  the  offer  to  answer  for  the  debt  of  another  in  consideration  of 
forbearance,  in  order  to  complete  the  contract.^*  Thus,  mere  for- 
bearance to  sue  the  maker  of  a  note,  without  any  agreement  to 
that  effect  on  the  part  of  the  holder,  is  not  a  sufficient  considera- 
tion.^'* But  actual  forbearance  to  sue  on  a  note,  in  connection 
with  other  facts,  may  be  evidence  of  an  agreement  to  forbear,  and 
as  such  forms  a  sufficient  consideration.^^ 

§  45.  Offer  to  Become  Surety  for  Another. — A  person  propos- 
ing to  become  a  surety  for  another,  is  not  bound  to  inquire  as  to 
the  acceptance  of  his  offer.  The  creditor  who  intends  to  hold  him 
must  show  reasonable  notice  of  such  intention.  Wherever  one 
offers  his  name  with  that  of  others  as  surety  to  whomsoever  may 
accept  the  proposal,  he  is  entitled  to  notice  of  the  acceptance,  and 
is  not  obligated  to  make  inquiries  on  that  point."  The  reason  of 
this  rule  is,  that  the  surety  may  have  the  opportunity  of  arrang- 

Atl.  749;  Howe  v  .Taggart,  133  Mass.       55.  Mecorney  v.   Stanley,  8   Cush.. 
284;   Coles  v.  Pack,  L.  R.  5  C.  P  65.    (Mass.)    85;    Breed    v.    Hillhouse,    7 

51.  Andrews    v.    Morrett,    53    Me.    Conn.  523. 

589;    Kisner  v.   Pullen,   3   Daly    (N.       56.  Walker    v.    Sherman,    11    Met. 
Y.)  485.  (Mass.)    170;    Breed  v.   Hillhouse,   7 

52.  Many,  Blane  &  Co.  v.  Krueger,    Conn.  523. 

153  111.  App.  327.  57.  Douglas  v.  Reynolds,  7  Pet.  (U. 

53.  United  States  v.  Linn,  15  Pet.  S.)  113,  8  L.  Ed.  626;  Gano  v.  Farm- 
(U.  S.)  290,  10  L.  Ed.  742;  Hess's  Es-  ers'  Bank  of  Kentucky,  103  Ky.  508, 
state,  150  Pa.  St.  346,  24  Atl.  676;  20  Ky.  Law  Rep.  197,  45  S.  W.  519, 
Rumberger  v.  Golden,  99  Pa.  St.  34.  82   Am.   St.   Rep.   596;    Steadham   v. 

54.  Clark     v.     Russell,     3     Watts  Guthrie,  4  Met.   (Ky.)   147. 
(Pa.)  213. 


51  Execution  of  the  Conteact.         §  46 

ing  his  relations  with  the  party  for  whose  benefit  or  in  whose 
favor  the  surety  is  given. ^^  But  where  the  agreement  to  accept  is 
contemporaneous  with  the  guaranty  or  suretyship,  and  is  the  con- 
sideration therefor,  and  all  the  parties  being  privy  to  the  whole 
transaction,  no  specific  notice  of  acceptance  is  necessary. ^^ 

So  where  the  contract  of  employment  of  a  sales  agent  provided 
that  a  bond  should  be  given  by  him  for  the  faithful  discharge  of 
his  duties  it  was  decided  in  a  suit  on  the  bond  given  in  pursuance 
of  such  provision  that  it  was  unnecessary  to  allege  that  the  bond 
was  formally  accepted  and  the  surety  formally  notified  of  such 
acceptance.^**     Acceptance  in  some  cases  may  also  be  presumed. ^'^ 

§  46.  Extension  of  Time — Agreement  to  Pay  Interest. — 
Where  the  interest  is  paid  in  advance,  or  any  part  of  it,  this  is  a 
sufficient  consideration  for  the  forbearance.  But  another  ques- 
tion arises  whether  a  bare  promise  to  pay  interest  during  a  fixed 
period  of  extension  stipulated  for  is  a  sufficient  consideration. 
The  weight  of  authority  is  that  such  an  agreement  is  a  valuable 
consideration.  It  is  a  valuable  right  on  the  part  of  the  creditor 
to  have  his  money  placed  out  at  interest,  and  it  is  a  valuable  right 
on  the  part  of  the  debtor  to  have  the  privilege  at  any  time  of 
getting  rid  of  the  payment  of  interest  by  discharging  the  debt. 
By  this  contract  of  extension  the  right  to  interest  is  secured  for  a 
given  period,  and  the  right  to  pay  oif  the  debt  and  get  rid  of  pay- 
ing interest  is  also  relinquished  for  such  period.  The  creditor 
relinquishes  his  right  to  demand  immediate  payment  and  con- 

68.  Thompson  v.  Glover,  78  Ky.  ance  should  be  given  to  him.  Har- 
193;  Howe  v.  Nichols,  22  Me.  175.  gis  v.  Fidelity  Mutual  Life  Ins.  Co., 

69.  Wildes  v.  Savage,  1  Story  (U.  29  Okla.  195,  117  Pac.  794;  Fidelity 
S.)  22;  Bleeker  v.  Hyde,  3  McLean  Mutual  Life  Ins.  Co.  v.  Stegall,  27 
(U.   S.)    279;    Village  of  Chester  v.  Okla.  151,  111  Pac.  389. 

Leonard,  68  Conn.  495,  37  Atl.  397;  60.  Bruce  Co.  v.  Lambour,  123  La. 

Reigart  v.  White,  52  Pa.  St.  438.  969,  49  So.  659. 

See   Singer  Mfg.   Co.   v.   Freerks,  61.  Acceptance  presnmed.   The  ac- 

12  S.  D.  595,  98  N.  W.  705,  holding  ceptance  of  a  fidelity  bond   by  the 

principal  to  be  ag:ent  of  surety  for  obligee  is   presumed  from   the   fact 

delivery  where  latter  gives  bond  to  that  it  is  retained  by  the  obligee  and 

former  to  deliver  to  obligee.  the  employee  continued  in  the  dis- 

In  case  of  a  contract  of  suretyship  charge  of  his  duties.     Boyd  v.  Agrl- 

It  is  decided  that  it  is  not  essential  cultural  Ins.  Co.,  20  Colo.  App.  28,  76 

In  order  to  render  it  binding  upon  Pac.  986. 
the  surety  that  notice  of  its  accept- 


§    46  StJKETYSHlP    AND    GuAKANTY.  52 

verts  the  debt  into  an  immatured,  interest-bearing  security,  and 
the  debtor  relinquishes  his  right  to  make  immediate  payment  and 
binds  himself  to  pay  interest  for  the  time  specified,  in  considera- 
tion of  such  extension  on  the  part  of  the  creditor.*'^  So  the  promise 
of  the  holder  of  a  note  to  grant  an  extension  of  the  time  for  its 
payment,  for  a  certain  period,  after  maturity,  in  consideration 
of  the  promise  of  the  maker  to  pay  interest  thereon  at  a  stipulated 
rate  for  such  period,  constitutes  a  valid  and  binding  agreement 
upon  a  sufficient  consideration,  notwithstanding  the  rate  of  in- 
terest so  agreed  to  be  paid  is  less  than  that  named  in  the  note. 
The  maker  thus  assumes  an  obligation,  not  before  imposed  upon 
him,  and  the  holder  of  the  note  acquires  an  additional  substantial 
right — that  of  refusing  payment  and  exacting  interest  for  the 
full  period  of  the  extension.  Such  mutual  promises  are  a  suffici- 
ent consideration  each  for  the  other,^  if  on  no  other  consideration. 
In  such  case,  however,  it  is  essential  that  there  be  a  definite  and 
express  promise  on  the  part  of  the  maker  of  the  note  to  pay  in- 
terest for  the  stipulated  time.  A  mere  promise  or  offer  on  the 
part  of  the  one  to  whom  payment  is  due  to  give  further  time, 
without  a  positive  agreement  on  the  part  of  the  debtor  to  pay 
interest  for  such  time,  is  a  promise  without  consideration  to  sup- 
port it.  It  is  a  mere  nudum  pactum,  and  does  not  change  the  legal 
relations  of  the  parties.^'*  And  so  a  mere  payment  of  interest  in 
advance  does  not  discharge  the  surety,  there  being  no  express 
agreement  that  the  time  of  payment  should  thereby  be  extended.* 

62.  Illinois. — Dodgson    v.    Hender-  Texas. — Benson  v.  Phipps,  87  Tex. 

son,  113  111.  361.  578,  29  S.  W.  1061. 

Georgia. — Stallings  v.  Johnson,  27  West   Virginia. — Parsons    v.    Har- 

Ga.  564.  rold,  46  W.  Va.  122,  32  S.  E.  1002. 

Kentucky. — Robinson  v.  Miller,   2  63.  English    v.    Landon,    181    111. 

Bush.  192.  614,  54  N.  E.  911;    Crosman  v.  Wo- 

Maine.— Chute    v.    Patte,    37    Me.  heleben,  90  111.  537;   Moore  v.  Red- 

102.  ding,  69  Miss.  841,  13  So.  849;  Bailey 

New      Hampshire.  —  Fowler      v.  v.  Adams,  10  N.  H.  162;   Fawcett  v. 

Brooks,  13  N.  H.  240.  Freshwater,  31  Ohio  St.  637;    Wood 

Ohio.— Wood  V.  Newkirk,  15  Ohio  v.  Newkirk,  15  Ohio  St.  295. 

St.    297;    McComb    v.    Kittridge,    14  64.  Ingles  v.  Sutliff,  36  Kan.  444, 

Ohio  348.  13    Pac.   828;    Bailey    v.    Adams,    10 

Tennessee.  —  Stone     River     Nat.  N.  H.   162;   Fulton  v.  Matthews,   15 

Bank  v.  Walter,  104  Tenn.  11,  55  S.  Johns.   (N.  Y.)   433. 

W.  301.  65.  Morse  v.  Blanchard,  117  Mich. 

37,  75  N.  W.  93. 


53  Execution  of  the  Oontkact.     §§  47,  48 

§  47.     Both  Parties  Must  be  Bound. — It  is  essential  in  such  ex- 
tension that  both  parties  shall  be  bound  by  the  agreement,  or  that 
it  shall  be  mutual.     Hence,  a  mere  indorsement  by  a  creditor 
upon  a  note,  that  the  time  of  payment  is  extended  to  a  given  day, 
and  that  interest  has  been  paid  to  such  date  at  the  same  rate  speci- 
fied in  the  note,  without  any  proof  or  showing  that  the  interest 
was  in  advance,  there  being  no  date  to  such  indorsement  and  no 
evidence  that  the  debtor  bound  himself  to  keep  the  money  or  pay 
interest  for  the  time  of  such  extension — shows  no  contract  or 
agreement  by  the  debtor  to  such  arrangement.     It  is  essential  that 
both  parties  shall  be  bound  by  the  agreement,  or  that  the  agree- 
ment be  mutual.''''     And  consideration  for  the  extension  of  pay- 
ment must  be  something  more  than  the  mere  doing  or  promise 
to  do  something  by  the  debtor  which  was  obligatory  upon  him 
by  the  original  contract."     It  is  immaterial  what  rate  of  interest 
is  to  be  paid  during  the  period  of  extension,  provided  it  is  not  a 
rate  prohibited  by  law.     It  may  be  the  rate  stipulated  in  the  ori- 
ginal contract,  or  a  different  rate.    The  right  of  the  ddbtor  to  have 
the  use  of  the  money  for  any  defined  time,  and  the  right  of  the 
creditor  to  get  interest  at  any  given  rate  for  such  period  are  alike 
valuable  in  law,  and  will  support  the  mutual  promise — that  of  the 
creditor  to  forbear  and  that  of  the  debtor  to  retain  the  money  and 
pay  interest.^*     A  mere  promise  by  the  creditor  to  forbear  with- 
out any  promise  on  the  part  of  the  debtor  not  to  pay  the  debt 
during  the  time  of  the  promise  to  forbear,  lacks  mutuality,  and 
therefore  no  contract  arises.     And  some  courts  hold  that  an  ex- 
press promise  to  pay  interest  for  the  time  is  not  necessary,  and 
that  such  an  agreement  of  extension  has  all  the  essentials  of  a 
valid  contract.®* 

All  the  courts  hold  that  the  time  must  be  definite. 


§  48.  Extension  of  Time  by  Paying  Interest — Contrary  Doc- 
trine.— Another  line  of  authorities  hold  a  contrary  doctrine.  It 
is  argued  that  as  the  de'btor  has  already  impliedly  bound  himself 
to  continue  to  pay  interest  in  case  of  non-payment  at  muturity, 

86.  CrosBman  v.  Woheleben,  90  111.  68.  Moore  v.  Redding,  69  Miss.  841, 

537.  13  So.  849. 

67.  Ingles  v.  Sutliff,  36  Kan.  444,  69.  Nelson  v.  Flagg,  18  Wash.  39. 

13  Pac.  828.  50  Pac.  571. 


§    48a  SUKETY.SIIIP   AND   GUAKANTY.  54: 

the  new  promise  to  pay  interest  during  the  fixed  period  of  exten- 
sion is  without  consideration.  The  creditor  receives  no  benefit 
from  the  new  promise,  because  the  debtor  is  already  bound  to  the 
same  extent  by  his  original  promise.™ 

§  48a.  Place  of  Signature. — The  proper  place  for  the  signa- 
ture of  the  principal  and  surety  to  a  bond  is  at  the  foot  thereof 
though  this  may  not  be  essential  in  order  to  bind  him.^^ 

It  does  not,  however,  follow  as  a  matter  of  law  that,  because 
it  is  not  necessary  in  order  to  hold  a  surety  on  a  bond  that  his 
sigTiature  be  in  its  proper  place,  he  is  bound  by  a  misplaced  sig- 
nature. If  his  signature  is  so  placed  as  to  fairly  raise  a  question 
as  to  whether  it  was  affixed  with  intent  to  execute  the  instrument 
as  surety,  that  question  must  be  solved  as  one  of  fact  upon  the 
evidence.^^  So  evidence  is  held  to  be  admissible  in  an  action 
between  the  original  parties  to  an  indemnity  bond  to  recover  from 
an  alleged  surety  that  the  party  sought  to  be  charged  as  such 
surety  intended  to  sign  his  name  as  a  witness  but  inadvertently 
placed  his  signature  thereto  under  the  name  of  the  obligor,  instead 
of  in  the  proper  place  for  a  witness  to  sign,  although  no  facts 
were  pleaded  or  proved  to  show  that  any  fraud  had  been  perpe- 

70.  Massachusetts.  —  Hill  v.  Dun-  to  put  a  person  on  notice  of  any  iu- 

3iam,  7  Gray  543.  firmity  in  the  paper,  it  being  declared 

Michigan. — Hall     v.     Parker,     37  that   contracts   are   often   signed  In 

LMich.  590.  this  way.     Deering  &  Co.  v.  Veal,  25 

Minnesota.— State    v.     Young,     23  Ky.  Law  Rep.  1809,  78  S.  W.  886. 

Minn.  551.  Where  S    subscribes  his  name  to 

]S'ew  York. — Benjamin  v.  VerNooy,  a  contract  executed  by  B.  &  K.,  and 

36  App.  Div.  581,  55  N.  Y.  Supp.  79U.  no  mention  of  S.'s  name  appears  lu 

Pennsjlvania. — Commonwealth    v.  the    body   of   the   contract,   and    no 

Kendig,  2  Pa.  St.  448.  reference  to  his  liability  is  made  in 

Yormont. — Lovejoy  v.  Whipple,  18  the  contract,  it  is  held  that  he  will 

Vt.  379.  be  deemed  to  have  signed  as  surety. 

Enf^land. — Bloxsom  v.  Williams,  3  Sanders  v.  Keller,  18  Idaho  590,  111 

B.  &  C.  233.  Pac.  350. 

71.  Polacheck  v.  Moore,  114  Wis.  In  Ohio  one  who  signs  a  note  ou 
261,  90  N.  W.  175.  the  face  thereof  and  who  in  that  way 

72.  Polacheck  v.  Moore,  114  Wis.  becomes  a  surety  for  the  principal 
261,  90  N.  W.  175.  maker    is,    by    force   of   Rev.    St.,    § 

The  fact  that  a  wife  affixed  her  3178a,  primarily  liable  for  the  pay- 
signature  on  the  second  line,  and  ment  of  the  note.  Richards  v. 
not  on  the  first  line  for  signatures  Market  Exch.  Bank  Co.,  81  Ohio  St. 
to  a  note,  has  been  held  not  sufficient  348,  90  N.  E.  1000. 


55  Execution  of  the  Contil:\ct.  §  49 

trated  to  induce  him  to  sign  the  bond  in  that  capacity."  But 
where  one  claims  that  he  signed  a  contract  as  attesting  witness, 
and  the  contract  itself  imports  that  his  name  was  signed  thereto 
•either  as  principal  or  surety  in  order  to  overcome  the  presump- 
tion that  he  did  sign  as  surety,  as  is  averred  in  the  petition,  it  is 
incumbent  upon  him  not  only  to  allege  and  prove  that  he  signed 
it  as  an  attesting  witness  but  also  that  his  failure  to  indicate  on 
the  instrument  that  such  was  his  relation  thereto  was  caused  by 
the  fraud  of  the  one  who  seeks  to  hold  him  to  the  obligation  of  a 
surety  or  was  the  result  of  his  own  mistake.^* 

§  49.  Delivery  of  Contract, — A  contract  of  surety  is  not  com- 
plete until  delivery  of  the  instrument  creating  it.  The  contract 
is  noit  executed  until  delivery,  and  it  takes  effect  only  from  execu- 
tion and  delivery.^^ 

In  general  a  bond  speaks  from  its  date,  but  upon  proof  that  it 
was  delivered  at  a  later  time  the  primary  presumption  is  dis- 
placed by  one  that  it  was  intended  to  take  effect  from  its  delivery- 
only,  unless  by  its  terms  it  satisfactorily  appears  that  the  parties 
intended  it  to  take  effect  from  its  date  or  some  other  time.'^^  Thus 
a  bond  signed  on  Sunday  and  delivered  on  a  secular  day,  is  not 
•executed  until  delivered,  and,  hence,  the  signing  on  Sunday  did 
not  invalidate  it.''^  However,  in  some  States  an  instrument  exe- 
■cuted  on  Sunday  is  void,  though  delivered  on  a  secular  day.^^  A 
delivery  to  one  of  several  obligees  is  a  sufficient  delivery ;  it  is  not 

73.  United  States  Fidelity  &  Guar-  Wend.  501;  Draper  v.  Romeyn,  18 
anty  Co.  v.  Siegmann,  87  Minn.  175,    Barb.  166, 

^1  N.  W.  473,  holding  that  the  bond  Peiiusj iyania,  —  Rumberger       v. 

being  still  in  the  hands  of  one  of  the  Golden,  99  Pa.  St.  34. 

original     parties     no     element     of  Execution  and  deliyery  sufficiently 

estoppel  was  involved.  ayerred  where  petition  alleges  that 

74.  Green  v.  May  (Ky.  C.  A.  1912),  by  the  terms  of  the  contract  and 
147  S.  W.  428.  bond  the  sureties  bound  themselves, 

75.  Indiana. — Abel  v.  Alexander,  etc.  North  St.  Louis  Planing  Mill 
45  Ind.  523.  Co.  v.  Christophel   (Mo.  App.   1911), 

Iowa.— Hunt     v.     Postlewait,     28  137  S.  W.  295. 

Iowa  427.  76.  Brillion    Lumber    Co.    v.    Bar- 
Massachusetts. — Wilson  v.  Powers,  nard,  131  Wis.  284,  111  N.  W.  483. 

130  Mass.  427.  77.  State  v.  Young,  23  Minn.  551. 

New    York. — Kellogg    v.    Olmsted,  See,   also,   Richmond   v.   Moore,   107 

25  N.  Y.  189;   Reynolds  v.  Ward,  5  111.  429. 

,       78.  Parker  v.  Pitts,  73  Ind.  597. 


§  50  Suretyship  and  Guaranty.  6& 

necessary  that  all  the  obligees  be  present  when  the  instrument  is 
delivered.'" 

The  obligation  of  a  surety  is  to  the  creditor  or  obligee,  and  not 
to  the  principal,  and  hence,  the  insitrument  is  of  no  validity  until 
after  its  delivery.^'' 

The  contract  becomes  complete  upon  delivery  and  notice  of  ac- 
ceptance by  the  obligee  is  unnecessary.^^ 

§  50.  Delivery  in  Escrow. — A  deed  cannot  be  delivered  to  the 
grantee  in  escrow;  neither  can  a  bond  be  delivered  in  escrow  to 
the  obligee.  .So  if  a  bond  is  delivered  to  the  obligee  or  his  agent, 
and  not  to  a  stranger,  the  delivery  is  absolute,  and  parol  evidence 
of  conditions  qualifying  the  delivery  is  inadmissible.^^  But  in  a 
recent  case  in  North  Carolina  it  is  decided  that  it  is  competent  to 
show  that  a  written  instrument  to  answer  for  the  faithful  dis- 
charge of  the  duties  of  another  or  to  answer  for  his  debt  or  do- 
fault  was  handed  by  one  of  the  signers  to  the  obligee  therein 
named,  subject  to  the  control  of  tbe  person  delivering  it,  or  upua 
an  agreed  condition  and  not  as  a  completed  instrument.*^ 

It  is  said  that  a  deed  may  be  delivered  to  a  co-obligor  in  escro'iT 
or  to  the  principal  by  the  surety.*'*  This  rule  must  be  qualified, 
because  there  may  be  eases  in  which  the  obligor  may,  by  his  neg- 
ligence, impart  to  the  depositary  of  the  instrument  delivered  in 
escrow,  such  an  apparent  right  to  deliver  it  in  an  unqualified  form 
to  the  obligee,  as  to  prevent  the  obligor  from  setting  up  the  ex- 
istence of  a  condition  that  was  never  complied  with  before  the 
instrument  became  deliverable.     Thus,  in  case  of  a  perfect  bond 

79.  Moss  V.  Riddle,  5  Cranch.  (U.  83.  Dunlap  v.  Millett,  153  N.  C. 
S.)  351,  3  L.  Ed.  123.  317,  69  S.  E.  222,  holding  that  when 

80.  Benjamin  v.  Ver  Nooy,  36  App.  there  is  evidence  that  the  employee, 
Div.  (N.  Y.)   581,  55  N.  Y.  Supp.  796.  for  the  performance  of  whose  duties 

81.  Singer  Mfg.  Co.  v.  Freerks,  12  the  bond  was  given,  had  delivered 
N.  D.  595,  98  N.  W.  705;  Hargis  v.  such  instrument  to  the  president  of 
Fidelity  Mutual  Life  Ins.  Co.,  29  the  corporation  for  which  he  acts, 
Okla.  195,  117  Pac.  794;  Haupt  v.  upon  the  understanding  that  it  was 
Cravens  &  Co.,  56  Tex.  Civ.  App.  253,  to  be  delivered  to  the  board  of  di- 
120  S.  W.  541.  rectors  when  another  had  signed  as 

82.  Ordinary  v.  Thatcher,  41  N.  J.  surety,  the  person  to  whom  it  was 
L.  403;  Worrall  v.  Munn,  1  Seld.  delivered  was  a  mere  depository  un- 
229;  Cocks  v.  Barker,  49  N.  Y.  107.  til  the  condition  was  complied  with. 

Note  cannot  be  so  delivered.  Neely  84.  State  Bank  v.  Evans,  15  N.  J. 
T.  Lewis,  10  111.  31.  L.  155. 


&%  Execution  of  the  Contract.         §  51 

on  its  face,  executed  by  sureties  and  by  them  delivered  in  escrow 
to  the  principal  obligor,  who  delivers  it  in  the  ordinary  course  of 
business  to  the  obligee,  the  delivery  is  absolute  and  valid;  be- 
cause the  principal  obligor  had  been  clothed  with  an  apparent 
right  to  transfer  the  bond  without  qualification,  and  as  the  obligee, 
receiving  it  in  good  faith,  would  be  unavoidably  deceived  by  such 
conduct,  it  must  be  considered  a  valid  delivery.*^  So  a  condition 
imposed  by  a  surety  that  an  indemnity  bond  be  furnished  him 
does  not  release  him  from  liability  where  he  entrusts  the  paper, 
icomplete  upon  its  face,  to  a  co-surety  who  delivers  it  to  the 
obligee  having  no  knowledge  of  such  condition.^^  Delivery  to  the 
obligee  without  notice  of  the  condition,  or  any  circumstances  to 
arouse  his  suspicion,  makes  the  delivery  valid,  and  the  surety 
will  be  liable.  Such  obligee  is  considered  an  innocent  holder  for 
value.^^  But  a  delivery  to  a  third  party  and  a  stranger  to  the 
suit,  and  which  is  a  mere  delivery  in  escrow  confers  no  authority 
upon  him  ito  sign  the  principal's  name  and  to  deliver  the  bond 
so  as  to  make  a  valid  delivery.^* 

§  51.  Wrongful  Delivery  by  Principal. — The  general  rule  as 
to  the  wrongful  delivery  of  a  bond  by  the  principal,  is  this:  A 
bond  perfect  upon  its  face,  apparently  duly  executed  by  all  whose 
names  appear  therein,  purporting  to  be  signed  by  the  several 
obligors  and  actually  delivered  by  the  principal  without  sitipula- 
tion,  reservation  or  condition,  cannot  be  avoided  by  the  sureties 
upon  the  ground  that  they  signed  it  on  condition  that  it  should 
not  be  delivered  unless  it  should  be  executed  by  other  persons  who 
did  not  execute  it,  when  the  obligee  receives  it  in  good  faith,  or  is 
an  innocent  party.*^ 

85.  Dair  v.  United  States,  16  Wall,  of  Norway  v.  Boddicker,  105  Iowa 
(U.   S.)    1,   21   L.   Ed.    491;    Wolf  v.    548,  75  N.  W.  632. 

Driggs,  44  N.  J.  Eq.  363,  14  Atl.  480;  Kansas. — Johnson  v.  Weatherwax, 

Russell  V.  Freer,  56  N.  Y.  67.  9  Kan.  75. 

86.  Hendry  v.  Cartwright,  14  N.  M,  Missouri.— State  v.  Potter,  63  Mo. 
72.  89  Pac.  309,  8  L.  R.  A.    (N.  S.)  212. 

1056.  88.  Horton  v.  Stone,  32  R.  I.  499, 

87.  Illinois.— Smith  v.  Peoria  Co.,   80  Atl.  1. 

69  111.  412.  89.  United  States.— Ware  v.  Allen, 

Indiana.— State  v.  Pepper,  31  Ind.  128  U.  S.  590,  9  Sup.  Ct.  174,  32  L. 

76.  Ed.  563;  Butler  v.  United  States,  21 

Iowa.— Benton  County  Sav.  Bank  Wall.  272,  22  L.  Ed.  614. 


§    51  SUKETYSIIIP   AND    GUARANTY.  58 

The  principle  of  estoppel  applies  where  a  surety  has  affixed  his 
eigiiature  upon  condition  that  another  surety  be  obtained,  intrusts 
the  writing,  which  is  regular  on  its  face,  to  the  principal  and  the 
latter  delivers  it  to  the  obligee  who  has  neither  actual  nor  con- 
structive notice  of  such  condition  and  who  is  misled  to  his  in- 

Alabama. — Evans  v.  Daugherty,  84  Co.  v.  American  Bonding  &  Trust 
Ala.  (iS,  4  So.  592.  See  Wliite  Sew-  Co.,  72  Neb.  100,  100  N.  W.  138;  Hid- 
ing Machine  Co.  v.  Saxon,  121  Ala.  dleboro  Nat.  Bank  v.  Richards,  55 
399,  25  So.  784.  Neb.    682,   76   N.   W.   528;    Stoner   v. 

Arkansas.  —  Williams  v.  Morris  Keith  County,  48  Neb.  279,  67  N.  W. 
(1911),  138  S.  W.  564.  311;  Cutler  v.  Roberts,  7  Neb.  4. 

Ueorg'ia. — Lewis  v.  Commissioners,  Kew  York. — Russell  v.  Freer,  56 
70  Ga.  486.  N.  Y.  67,  questioning  People  v.  Bost- 

llliuois. — Chicago  v.  Gage,  95  111.  wick,  32  N.  Y.  445,  which  was  cited 
593;  State  v.  Supervisors,  59  111.  412.    in  Whitford  v.  Laidler,  94  N.  Y.  146. 

Indiana. — State  v.  Peffer,  31  Ind.  Oregon. — Wallenberg  v.  Sykes,  49 
76,  overruling  Pepper  v.  State,  22  Ore.  163,  89  Pac.  148;  Baker  v.  Hunt- 
Ind.  399.  ington,  46  Ore.  275,  79  Pac.  187. 

Iowa. — Sawyer  v.  Campbell,  107  Tennessee.  —  Lookout  Bank  of 
Iowa  397,  78  N.  W.  56;  Benton  Morristown  v.  Aull,  93  Tenn.  645,  27 
County  Savings  Bank  of  Norway  v.  S  W.  1014;  Dunn  v.  Garrett,  93 
Boddicker,  105  Iowa  548,  75  N.  W.  Tenn.  650,  27  S.  W.  1011;  Jordan  v. 
€32,  overruling  Daniels  v.  Gower,  54  Jordan,  10  Lea  124. 
Iowa  319,  3  N.  W.  424,  6  N.  W.  525.  Texas.— First    National    Bank    of 

Kansas. — Doorley  v.  Lumber  Co.,  Terrell  v.  Burns  (Civ.  App.  1910J, 
4  Kan.  App.  93,  46  Pac.  195.  126  S.  W.  34;   Seaton  v.  McReynolds 

Maine.— Lewiston  v.  Gagne,  89  Me.  (Civ.  App.  1903),  72  S.  W.  874;  For- 
395,  36  Atl.  629,  56  Am.  St.  Rep.  632;  rest  v.  White  Sewing  Mach.  Co.  (Civ. 
State  V.  Peck,  53  Me.  284.  App.  1902),  67  S.  W.  340. 

Massachusetts. — White  v.  Duggan,       Virginia.  —  Nash    v.    Fugate,    32 
140  Mass.  18,  2  N.  E.  110;  Thomas  v.    Gratt.  595. 
Bleakie,  136  Mass.  568.  Wisconsin.— Belden  v.  Hurlbut,  94 

Michigan.  —  McCormick     v.     Bay    Wis.  562,  69  N.  W.  357. 
City,  23  Mich.  457.  As  to  surety  signing  upon  condi- 

Minnosota. — Board     of     Education    tion,  see,  also,  §  129  herein. 
V.  Robinson,  81  Minn.  305,  84  N.  W.       It  is  a  rule  that  a  surety  who  signs 
105,  83  Am.  St.  Rep.  374;   Clarke  v.    a  bond  upon  the  condition  that  it  be 
Williams,  61  Minn.  12,  62  N.  W.  1125;    signed  by  other  sureties  is  not  re- 
State  V.  Young,  23  Minn.  89.  leased  from  liability  thereon  because 

Missouri. — State  v.  Potter,  63  Mo.  the  others  did  not  sign,  unless  notice 
212,  questioning  Ayres  v.  Milony,  53  of  the  condition  on  which  his  signa- 
Mo.  516.  ture  was  obtained  is  brought  home 

Montana. — Kenck  v.  Parchen,  22  to  the  obligee.  Johnson  County  v. 
Mont.  519,  57  Pac.  94,  74  Am.  St.  Rep.  Chamberlain  Banking  House,  SO  Neb. 
625.  96,  113  N.  W.  1055. 

Nebraska.  —  American     Radiator       It    is    a    question    for    the    jury 


59  Execution  of  the  Contract.         §  51 

jury.®"  iSo  the  possession  of  a  bond  by  the  principal  will  be  pre- 
sumed to  be  rightful,  and  having  rightful  possession  his  delivery 
of  it  is  binding  upon  the  sureties,  even  without  their  assent, 
there  being  nothing  on  the  face  of  the  bond,  or  in  any  of  the 
attending  circumstances,  to  indicate  that  there  was  any  fact  or 
circumstance  which  should  preclude  the  acceptance  of  the  bond.^^ 
And  a  note  signed  by  a  surety  as  a  joint  maker  in  fact  land  left 
in  the  hands  of  his  principal  therein,  or  with  the  agent  of  his 
principal,  who  procured  him  to  sign  it,  to  be  delivered  only  on 
condition  that  it  be  first  signed  by  ano-ther  surety,  is  binding  on 
the  surety  so  signing  it  though  it  is  delivered  to  the  payee  in  vio- 
lation of  such  condition,  provided  that  the  payee  had  no  notice 
thereof.^" 

But  if  the  obligee  has  notice  of  such  facts  as  would  cause  a 
person  of  reasonable  prudence  to  investigate  and  discover  that  the 
delivery  was  not  authorized,  then  he  cannoit  hold  the  surety 
liable.^^    And  if  the  surety  applies  to  the  creditor  for  information 


whether  the  payee  had  notice  of  There  cannot  be  a  guarantor  in  a 
such  an  agreement.  Williams  v.  contract  in  which  it  is  expressed 
Morris  (Ark.  1911),  138  S.  W.  464.  that  both  guarantor  and  principal 
Pleading.  In  an  action  by  the  should  be  bound,  if  both  do  not  sign 
obligee  to  enforce  the  obligation  in  accordance  with  the  condition  of 
against  the  sureties  on  a  bond  not  the  contract.  Selby  v.  City  of  New 
executed  by  the  principal,  the  com-  Orleans,  119  La.  900,  44  So.  722. 
plaint  should  set  out  the  fact  that  92.  Williams  v.  Morris  (Ark. 
the  sureties  waived  its  execution  by  1911),  138  S.  W.  564. 
the  principal  and  authorized  its  de-  Rule  applies  in  case  of  notes. 
livery  to  the  obligee  as  a  valid  obli-  Sawyers  v.  Campbell,  107  Iowa  397, 
gation.  In  the  absence  of  such  alle-  78  N.  W.  56;  Dooley  v.  Farmers  & 
gations  the  complaint  does  not  state  Mechanics'  Lumber  Co.,  4  Kan.  App. 
facts  sufficient  to  constitute  a  cause   93,  46  Pac.  195. 

of    action    and    upon    the    trial    the       93.  Colorado. — Byers    v.    Gilmore, 
sureties    are    entitled    to    judgment  10  Colo.  App.  79,  50  Pac.  370. 
upon  the  pleadings.  Bjoin  v.  Anglim,       Illinois. — Diefenthaler  v.   Hall,  96 
97  Minn.  526,  107  N.  W.  558.  111.  App.  639. 

90.  Wallenberg  v.   Sykes,   49   Ore.       Indiana. — Deering  Harvesting  Co. 
163,  89  Pac.  148.  v.  Peugh,  17  Ind.  App.  400,  45  N.  E. 

91.  North    St.   Louis    Planing   Mill   808. 

Co.    v.    Essex,    157    Mo.    App.     18,       Iowa.  —  Benton    County    Savings 
137    S.    W.    295,    citing    Phillips    v.    Bank  of  Norway   v.   Boddicker,   105 
Schall,  21  Mo.  App.  38,  42;   State,  to   Iowa  548,  75  N.  W.  632,  45  L.  R.  A. 
Use   V.    Potter,   63   Mo.   212,   21   Am.   321,  67  Am.  St.  Rep.  310. 
Rep.  440. 


§  51 


Suretyship  and  Guaranty. 


60 


respecting  the  principal  which  the  creditor  has  and  may  prop- 
erly give,  but  which  he  withholds  without  sufficient  cause,  or  if 
he  knowingly  gives  false  information,  he  and  not  the  surety  must 
suffer  the  damage  occasioned  by  the  wrong. ^* 

So  if  the  creditor  promises  to  look  alone  to  the  principal  for 
payment,  and  the  surety,  in  reliance  on  that  promise,  surrenders 
securities  held  for  his  indemnity,  or  is  induced  to  omit  to  pro- 
cure security,  or  otherwise  changes  his  position  in  reference  to 
the  principal,  he  then  is  no  longer  responsible  for  the  perform- 
ance of  the  obligation.^^  Whenever  the  obligee  has  notice  that 
the  surety  signed  upon  condition  which  has  not  been  fulfilled, 
then  he  is  not  an  innocent  holder,  and  the  surety  is  not  bound.*^ 


Kentucky. — Barber  v.  Riiggles,  27 
Ky.  Law  Rep.  1077,  87  S.  W.  785. 

Minnesota.  —  Deering  &  Co.  v. 
Shumspik,  67  Minn.  348,  69  N.  W. 
1088. 

New  York.— United  States  Life  Ina. 
Co.  V.  Salmon,  157  N.  Y.  682,  51  N.  E. 
1094. 

PennsylTania.  —  Columbia  Ave. 
Trust  Co.  V.  King,  227  Pa.  308.  76 
Atl.  18. 

South  Dakota,— State  v.  Weekes, 
12  S.  D.  339,  81  N.  W.  629. 

Washington. — City  of  Seattle  v. 
Griffith  Realty  &  Banking  Co.,  28 
Wash.  605,  68  Pac.  1036. 

Wisconsin. — Belden  v.  Hurlburt, 
94  Wis.  562,  69  N.  W.  357,  37  L.  R.  A. 
853. 

If  from  face  of  instrument  the 
obligee  has  notice  of  such  a  condi- 
tion, the  surety  is  not  bound.  Hall 
V.  Smith,  14  Bush.  (Ky.)  604;  Baker 
County  V.  Huntington,  46  Oreg.  275, 
79  Pac.  187. 

See  Hunter  v.  First  National  Bank 
of  Ft.  Wayne,  172  Ind.  62,  87  N.  E. 
734. 

Where  a  joint  bond  is  delivered  to 
the  obligee  and  contains  only  the 
signature  of  the  surety  it  is  imma- 
terial whether  the  former  had  no- 


tice that  the  principal  was  to  sign 
before  delivery,  as  the  obligee  is 
bound  to  take  notice  of  all  facts  dis- 
closed on  the  face  of  the  papers  and 
the  instrument  indicating  that  it 
was  the  intention  that  the  principal 
should  sign,  it  is  incomplete  on  its 
face.  Crawford  v.  Owens,  79  S.  C. 
59,  60  S.  E.  236. 

Constructire  notice  sufficient. 
Benton  County  Savings  Bank  of  Nor- 
way v.  Boddicker,  105  Iowa  548,  75 
N.  W.  632,  67  Am.  St.  Rep.  310,  45  L. 
R.  A.  321. 

Evidence  of  conversations  at  time 
of  signing,  see  People  to  Use  of  Na- 
tional Sewer  Pipe  Co.  v.  Sharp,  133 
Mich.  378,  94  N.  W.  1074,  10  Det.  Leg. 
News  217. 

94.  Wolf  V.  Madden,  82  Iowa  114, 
47  N.  W.  981;  Powers  Dry-Goods  Co. 
V.  Harlin,  68  Minn.  193,  71  N.  W.  16. 

See  §§  140  et  seq,  as  to  effect  of 
concealment  of  facts  and  duty  to  dis- 
close. 

95.  Whitaker  v.  Kirby,  54  Ga.  277; 
Harris  v.  Brooys,  21  Pick.  (Mass.) 
195;  Bank  v.  Haskell,  51  N.  H.  116. 

96.  Comstock  v.  Gage,  91  111.  328; 
Deering  Harvester  Co.  v.  Peugh,  17 
Ind.  App  400,  45  N.  E.  808;  Mark- 
land  Mining  Co,  v.  Kimme,  87  Ind. 


'61  Execution  of  the  Contract.         §  52 

In  order  that  failure  to  communicate  a  fact  to  the  surety  in  re- 
spect to  the  subject  matter  of  the  proposed  contract,  shall  have 
the  effect  of  a  fraud  upon  the  surety  and  vitiate  the  contract,  it 
must  be  a  faot  which  necessarily  increases  the  surety's  liability  or 
operates  to  the  prejudice  of  his  interest.^^  And  so  the  mere 
failure  of  the  obligee  to  disclose  a  fact  to  the  surety,  when  he  is 
under  no  obligation  to  epeak,  is  not  sufficient  to  release  the 
purety.^^ 

§  52.  Imperfect  Instrument. — Of  course  an  instrument  should 
be  complete  before  the  maker  or  surety  delivers  it.  But  if  there 
is  anything  on  the  face  of  it,  or  any  attending  circunjstances  to 
apprise  the  obligee  that  the  instrument  has  been  delivered  by  the 
surety  to  his  principal  to  be  delivered  to  the  obligee  only  upon 
certain  conditions  which  have  not  been  fulfilled,  then  the  obligee 
is  not  an  innocent  holder,  and  the  surety  is  not  liable.^*  So  where 
a  bond  is  not  perfect  upon  its  face,  because  not  signed  by  all  the 
sureties  whose  names  appear  therein  or  because  of  material  no- 
ticeable alterations  or  erasures  therein  or  because  of  a  lack  of 
some  requirement  which  the  law  fixes,  a  surety  may  defeat  re- 
covery thereon  by  showing  the  existence  of  a  condition,  imposed 
at  the  time  of  delivery  to  him  by  a  co-surety,  that  he  was  to  have 
an  indemnity  bond  against  his  suretyship  before  the  bond  was 
u^ed.^  When  the  delivery  is  made  directly  to  the  obligee,  it  can- 
not be  regarded  as  conditional  in  respect  to  the  party  who  makes 
it,  unless  the  condition  is  made  known  to  the  obligee.  If  the 
obligee  knows  of  the  condition  attached  to  the  delivery,  then  he 
will  be  presumed  to  assent  thereto  from  his  acceptance  of  the  in- 
strument.^ 

560;   Middleboro  Nat.  Bank  v.  Rich-  Mullen  v.  Morris,  43  Neb.  596,  62  N. 

ards,  55  Neb.  682,  76  N.  W.  528.  W.  74;  Cutler  v.  Roberts,  7  Neb.  4. 

97.  Lake  v.  Thomas,  84  Md.  608,  36  See  §§  51,  129,  herein,  as  to  sign- 
Atl.  437.  ing  on  condition. 

98.  Comstock  v.  Gage,  91  111.  328;  1.  Hendry  v.  Cartwright,  14  N.  M. 
Roper  V.  Sangamon  Lodge,  91  111.  72,  89  Pac.  309,  8  L.  R.  A.  (N.  S.) 
518.  1056. 

99.  Benton  County  Savings  Bank  2.  Ward  v.  Churn,  18  Gratt.  (Va.) 
of   Norway    v.   Boddicker,    105    Iowa  801. 

548,  75  N.  W.  632,  45  L.  R.  A.  321,  67        See  §  50  herein  as  to  delivery  to 
Am.  St.  Rep.  310;  Crystal  Lake  Tp.   obligee. 
V.  Hill,  109  Mich.  246,  67  N.  W.  121; 


§§  53,  54  Suretyship  and  Guaranty.  62 

Although  there  may  be  expectations  that  there  is  to  be  another 
surety  from  the  statement  of  the  principal  when  the  bond  was 
signed  by  the  surety,  his  bond  is  binding  upon  the  one  signing, 
although  not  signed  by  the  other.''^  Thus,  A  executed  a  promis- 
sory note  payable  to  the  order  of  B,  and  induced  C  and  D  to  sign 
as  sureties,  who  signed  and  re-delivered  it  to  A  upon  the  promise 
tliat  he  would  procure  other  persons  named  by  them  also  to  exe- 
cute such  note  as  sureties.  In  disregard  of  his  promise  A  deliv- 
ered the  note  to  B  without  procuring  the  additional  sureties  agreed 
upon ;  the  sureties  C  and  D  were  bound.*  The  agreement  must  be 
written  before  delivery.  Thus,  a  blank  piece  of  paper  signed  and 
executed  by  the  principal  and  sureties,  which  the  principal  after- 
wards fills  out  according  to  agreement,  is  not  binding;^  but  if 
it  be  a  printed  blank,  such  as  a  note,  the  surety  can  sign  the 
blank  and  give  the  principal  authority  to  fill  up  the  note ;  and  if 
wrongfully  filled  up  the  surety  is  bound.^  And  a  mistake  in  desig- 
nating the  payee  of  a  note  is  held  not  to  relieve  a  surety,  if  the 
note  was  indorsed  to  the  person  intended.^ 

§  53.  Surety's  Name  Not  Appearing  in  the  Body  of  the  In- 
strument.— If  parties  sign  a  bond  as  sureties,  but  their  names  do 
not  appear  in  the  body  of  the  bond,  they  are  bound.^  So  it  is  not 
essential  to  charge  a  surety  on  a  bond  that  his  name  must  appear 
in  the  body  of  the  bond  if  he  otherwise  executes  it.^  And  so 
where  there  is  a  greater  number  of  signatures  than  seals  on  a 
bond,  two  or  more  of  the  signers  may  adopt  one  seal  and  thereby 
become  liable,  altliough  the  names  of  all  the  obligors  do  not  ap- 
pear in  the  body  of  the  instrument.^** 

^  54.  Principal  Not  Signing. — In  some  cases  the  principal  fails 
to  execute  the  instrument,  and  then  the  question  arises,  are  the 
sureties  liable  ?     The   courts   do  not   agree,   and   their  decisions 

3.  Simpson  v.   Bovard,  74   Pa.   St.  7.  Bassett  v.  O'Neil  Coal  &  Coke 

351.  Co.,  140  Ky.  346,  131  S.  W.  25. 

i.  Deardorff  v.  Foresman,  24  Ind.  8.  Neal  v.  Morgan,  28  111.  524;  Pot- 

481.  ter  v.  State,  23  Ind.  550;   Holmes  v. 

5.  Penn  v.  Howlett,  27  Gratt.  (Va.)  State,  17  Neb.  73,  22  N.  W.  232. 
337.      Compare    Wiley    v.    Moor,    17  9.  Leith  v.  Bush,  61   Pa.   St.   395; 
Serg.  &  R.   (Pa.)   292.  Danker   v.   Atwood,    119    Mass.    146; 

6.  Roberson  v.  Blevins,  57  Kan.  50,  Sheid  v.  Liebshultz,  51  Ind.  38. 

45  Pac.  63.  10.  Building   Association    v.   Cum- 

mings,  45  Ohio  St.  664,  16  N.  E.  841. 


63  Execution  of  the  Contract.         §  54 

are  in  conflict.  In  many  jurisdictions  the  sureties  are  liahle, 
though  the  name  of  the  principal  is  not  subscribed  to  the  instru- 
ment." 

In  a.  recent  case  in  the  United  States  Circuit  Court  of  Appeals 
the  rule  is  stated  that  where  the  principal  named  in  the  bond 
would  be  liable  in  the  absence  of  the  bond  for  the  acts  or  omis- 
sions which  constitute  the  breach  of  its  conditions  in  suit,  the  fail- 
ure of  the  principal  to  sign  the  bond  does  not  relieve  the  surety 
who  has  executed  and  caused,  or  permitted,  it  to  be  delivered  to 
the  O'bligee  from  its  liability  for  the  breach  of  its  condition. ^^ 
So  if  the  bond  is  not  executed  by  the  principal,  if  his  name  is 


11.  Alabama — McKissach     v.     Mc-  See  §  54  herein. 

Clendon,  133  Ala.  558,  32  So.  486.  12.  Empire    State    Surety    Co.    v.. 

California, — Kurtz  v.  Forquer,   94  Carroll  County   (C.  C.  A.  1912),  194 

Cal.  91,  29  Pac.  413.  Fed.  593,  citing  the  following  cases: 

Illinois. — Trustees    of    Schools    v.  United  States. — United  States  Fi- 

S'Cheik,  119  111.  579,  8  N.  E.  189.  delity  &  Guaranty  Co.  v.  Haggart,  91 

Kansas.— Tillson  v.  State,  29  Kan.  C.  C.  A.  289,  297,  163  Fed.  801,  809; 

452;  Johnson  v.  Weatherwax,  9  Kan.  St.   Louis   Brewing  Ass'n   v.   Hayes, 

75.  38  C.  C.  A.  449,  97  Fed.  859. 

Maine. — State  v.  Pack,  53  Me.  284;  Alabama. — United    States    Fidelity 

Haskins    v.    Lombard,    16    Me.    140;  &  Guaranty  Co.  v.  Union  Trust  &  S. 

Scott  V.  Whipples,  5  Me.  336.  Co.,  142  Ala.  532,  38  So.  177. 

Massachusetts. — Herrick  v.  John-  Arizona. — Pima  County  v.  Snyder, 

son,  11  Met.  26.  5  Ariz.  45. 

Missouri.— State  v.  Peyton,  32  Mo.  Connecticut. — Lovejoy  v.  Isbell,  70 

App.  522.  Conn.  557,  40  Atl.  531. 

Nebraska.— State  v.  Hill,  47  Neb.  Illinois.— Trustees    of    Schools    v. 

456,  66  N.  W.  457;  Bollman  v.  Pose-  Scheik,  119  111.  579,  8  N.  E.  189,  192. 

walk,  22  Neb.  761.  Maine.— City  of  Deering  v.  Moore, 

New  York.- Parker  v.  Bradley,  2  86  Me.  181,  29  Atl.  988,  41  Am.  St. 

Hill   584;    Williams   v.  Marshall,   42  Rep.  534. 

Barb.  524.  Michigan.— Gibbs    v.    Johnson,    63 

Ohio. — State  v.  Bowman,  10  Ohio  Mich.  671,  30  N.  W.  343. 

445.  Montana. — Woodman     v.     Calkins, 

Pennsylvania.— Loew  v.  Stockney,  13  Mont.  363,  34  Pac.  187,  40  Am.  St.. 

68  Pa.  St.  226;  Grimm  v.  School  Dist,  Rep.  449. 

51  Pa.  St.  219;  Keyeser  v.  Keen,  17  Ohio.— Johnson     v.     Johnson,     31 

Pa.  St.  327.  Ohio  St.   131;    State  v.  Bowman,   10- 

Texas.  —  Mitchell     v.     Hydraulic  Ohio  445. 

Building  Stone  Co.  (Civ.  App.  1910),  Texas.— San  Roman  v.  Watson,  54 

129  S.  W.  148.  Tex.  254. 

Canada.— Miller  v.  Ferris,  10  Up-  Wisconsin.— Douglass     County     v.. 

per  Can.  423.  Bardon.  79  Wis.  641,  48  N.  W.  969. 


g  54 


SiURETYSHIP    AND    GUARANTY. 


64 


mentioned  in  the  body  of  the  instrument,  the  surety  is  bound, 
though  the  obligor  does  not  sign  the  bond/^  Other  authorities 
hold  that  such  bonds  are  of  no  validity,  and  that  the  sureties  are 
not  liable.^* 

In  a  recent  case  in  Missouri  it  is  said  that  the  Supreme  Court 
of  that  State  has  held  that  a  common  law  bond  not  signed  by  the 
principal  is  void  as  to  the  sureties  where  it  shows  on  ita  face 
that  it  is  not  a  complete  instrument  without  such  signature  but 
that  the  court  seems  by  its  reasoning  clearly  to  recognize  that  the 


13.  Indiana. — Wildcat  Branch  v. 
Ball,  45  Ind.  213. 

Kansas.— Tillson  v.  State,  29  Kan. 
452. 

Maine.— Chase  v.  Hathorn,  61  Me. 
505. 

Michigan. — Adams  v.  Kellogg,  b3 
Mich.  616. 

Missouri.— State  v.  Peyton,  32  Mo. 
App.  522. 

Nebraska. — Bollman  v.  Pasewalk, 
22  Neb.  761,  36  N.  W.  134. 

New  York. — Parker  v.  Bradley,  2 
Hill  (N.  Y.)  584. 

Ohio. — Johnson  v.  Johnson,  31 
Ohio  St.  131. 

Wisconsin. — Douglas  County  v. 
Bardon,  79  Wis.  641,  48  N.  W.  969. 

14.  California. — People  v.  Hartley, 
21  Cal.  585;  Sacramento  v.  Dunlap, 
14  Cal.  421. 

Connecticut. — Berry  v.  Burchard, 
21  Conn.  602. 

Iowa. — Novak  v.  Pitlick,  120  Iowa 
286,  94  N.  W.  916. 

Louisiana. — Wills  v.  Dill,  6  Martin 
(La.)  665. 

Massachusetts. — Goodyear  Dental 
"Vulcanite  Co.  v.  Bacon,  151  Mass. 
460,  24  N.  E.  404;  Russell  v.  Anna- 
bel, 109  Mass.  72;  Bean  v.  Parker, 
17  Mass.  591. 

Michigan. — Green  v.  Kindy,  43 
Mich.  279;  Hall  v.  Parker,  39  Mich. 
289:  Johnston  v.  Kimball,  39  Mich. 
187. 

Minnesota. — Bjoin    v.    Anglim,    97 


Minn.  529,  107  N.  W.   558;    State  v. 
Austin,  35  Minn.  51. 

Missouri. — Gay  v.  Murphy,  134  Mo. 
98,  34  S.  W.  1091,  56  Am.  St.  Rep. 
496;  Bunn  v.  Jetmore,  70  Mo.  228. 

Montana. — Horton  v.  Stone,  32  R. 
I.  499,  80  Atl.  1. 

Nebraska. — Gregory  v.  Cameron,  V 
Neb.  414. 

New  York. — Tully  v.  Lewitz,  50 
Misc.  R.  350,  98  N.  Y.  Supp.  829. 

South  Dakota. — Board  v.  Sweeney, 
1  S.  Dak.  642. 

Yerniont. — Fletcher  v.  Austin,  11 
Vt.  447. 

A  bond  purporting  to  be  the  obli- 
gation of  one  as  principal  and  of 
others  as  sureties,  does  not,  upon  its 
face,  show  any  obligation  on  the 
part  of  such  sureties,  where  it  has 
been  executed  only  by  the  sureties. 
School  District  No.  80  v.  Lapping, 
100  Minn.  139,  110  N.  W.  839,  citing 
State  V.  Austin,  35  Minn.  51,  26  N.  W. 
906;  Bjoin  v.  Anglim,  97  Mirn.  526, 
107  N.  W.  558. 

It  has  been  held  competent  for 
sureties  to  testify  that  when  they 
executed  a  bond  they  supposed  it 
had  already  been  signed  by  the 
principal  and  that  they  had  no  in- 
tention of  delivering  the  instrument 
as  a  completed  and  binding  obliga- 
tion without  his  signature.  School 
District  No.  80  v.  Lapping,  100  Minn. 
139,  110  N.  W.  849. 


65  Execution  of  the  Contract.         §  55 

sureties  would  be  bound  where  the  bond  shows  their  intention  to 
bind  themselves  whether  the  principal  signs  or  not.^^ 

In  a  recent  case  in  Ehode  Island  in  which  it  is  decided  that  a 
bond  without  the  signature  of  the  principal  obligor  is  void  as  to 
tlie  sureties  the  court  say  in  referring  to  decisions  which  were 
cited  holding  that  such  a  defect  is  a  mere  technical  one  which  will 
not  release  the  sureties,  that  in  most  of  these  cases,  where  a  statu- 
tory or  official  ibond  was  required,  it  was  found  that  the  statute 
or  regulation  under  which  the  bond  was  given  did  not  require 
that  the  principal  should  personally  sign  the  bond  and  that  in  all 
of  them  it  was  found  that  the  principal  being  elected  or  appointed 
to  an  official  position  and  bound  to  perform  official  duties  accord- 
ing to  law,  was  just  as  much  legally  bound  for  his  defaults  as  if 
he  had  signed  the  bond  and  equally  liable  to  reimburse  his  sureties 
for  all  money  required  to  be  paid  by  them  to  make  good  his  de- 
faults, whether  he  signed  the  bond  or  not.^^ 

In  those  jurisdictions  where  the  surety  is  held  liable  on  such 
bonds,  he  may  maintain  an  action  against  the  officer  for  any  sum 
he  may  be  compelled  to  pay  as  such  surety,  notwithstanding  such 
officer  never  signed  and  executed  the  bond." 

§  55.  Alteration  of  the  Instrument. — A  material  alteration  of 
a  bond  or  note  after  its  execution,  when  intentionally  made,  by 
one  having  an  interest  in  it,  and  without  the  consent  of  the  party 
bound  by  it,  invalidates  the  instrument  as  to  such  party.  The  al- 
teration destroys  the  identity  of  the  contract ;  therefore,  if  a  party 
to  a  contract  who  has  not  consented  to  the  alteration  were  to  be 
bound  by  it,  it  would  be  in  effect  imposing  upon  him,  against  his 
will,  a  new  contract,  as  to  whose  terms  he  never  agreed.^*  Thus, 
if  A  borrows  of  B  $1,000  upon  his  note  indorsed  by  C,  and  af- 
terwards, without;  the  consent  or  knowledge  of  C,  but  with  the 
knowledge  and  consent  of  B,  the  note  was  also  by  A  raised  to 

15.  North   St.   Louis   Planing  Mill    119  111.  579,  8  N.  E.  189. 

Co.    V.    Essex,     157    Mo.    App.     18,  18.  Wood  v.  Steele,  6  Wall.  (U.  S.) 

137  S.  W.  295,  citing  Gay  v.  Murphy,  80,  18  L.  Ed.  725;  Chadwick  v.  East- 

134  Mo.  98,  34  S.  W.  1091,  56  Am.  St.  man,  53  Me.  12;    Neff  v.  Homer,  63 

Rep.  496.  Pa.  St.  330. 

16.  Horton  v.  Stone,  32  R.  I.  499,  As  to  alterations  of  instrument  see 
80  Atl.  1,  per  Parkhurst,  J.  §§  100  et  seq. 

17.  Trustees  of  Schools  v.  Scheik, 

5 


§  56  Suretyship  and  Guaranty.  6(> 

$1,500,  as  security  for  the  additional  $500,  which  thereupon  B 
loaned  to  A,  such  alteration  invalidated  the  note  entirely  as  to 
C.^^  iSuch  material  alterations  apply  to  contracts  of  suretyship.^" 
The  general  rule  is  that  an  alteration  which  does  not  destroy 
the  identity  of  a  written  instrument,  nor  in  any  way  affects  the 
liahility  thereof  of  the  surety,  is  not  such  an  alteration  as  will 
release  the  surety.^^ 

§  56.  Filling  Blanks — As  to  Surety's  Liability. — The  surety 
may  be  held  liable  on  a  bond  which  he  signs,  the  bond  not  being 
filled  up.  Thus,  if  the  surety,  relying  upon  the  good  faith  of  the 
principal,  signs  a  bond  in  blank  and  returns  it  to  the  principal, 
the  surety  therehy  clothes  him  with  apparent  authority  to  fill 
up  the  blanks  at  his  discretion  in  any  appropriate  manner  con- 
sistent with  the  nature  of  the  obligation,  so  that  the  surety  is 
bound  as  to  an  innocent  obligee  or  payee.^^  Hence,  parol  author- 
ity is  sufficient  to  fill  up  a  sealed  instiiiment,  and  this  filling  up 
is  sufficient  to  hold  the  surety.^^  A  party  executing  a  bond,  know- 
ing that  there  are  blanks  in  it  to  be  filled  up  necessary  to  make  it 
a  perfect  instrument,  must  be  considered  as  agreeing  that  the 
blanks  may  be  thus  filled  after  he  has  executed  the  bond.^*  In 
such  cases  the  sureties  are  responsible  for  the  additions  that  may 
be  made  to  the  instrument  without  knowledge  of  the  obligee  or 
payee.^' 

19.  Batchelder    v.    White,    80    Va.  Co.  v.  Muncy,  24  Ky.  Law  Rep.  2255, 
103.  73  S.  W.  1030. 

20.  Smith  v.  United  States,  2  Wall.  Massachusetts.— Smith  v.  Crooker, 
(U.  S.)  219,  17  L.  Ed.  788;  Reese  v.  5  Mass.  538. 

United     States,     9    Wall.     (U.     S.)  Missouri.— County   v.    Wilhite,    2» 

13,  19   L.  Ed.  541;    Stoner  v.  Keith  Mo.  App.  459. 

County,  48  Neb.  279,  67  N.  W.  311;  New   York.— Ex   parte   Kerwin,   8 

State  ex  rel.  Howell  County  v.  Find-  Cow.  118. 

ley,  101  Mo.  368,  14  S.  W.  111.  Pennsylvania.- Stahl  v.  Berger,  10 

As    to    alterations    of    instrument  Serg.  &  R.  170. 

see  §§  100  et  seq.  herein.  23.  Bartlett  v.  Board,  59  111.  364; 

21.  Barker  v.  Burrows,  51  Cal.  404;  Swartz  v.  Ballou,  47  Iowa  188;  Stat© 
Bucklen  v.  Huff,  53  Ind.  74;  Sawyer  v.  Young,  23  Minn.  551. 

V.  Campbell,  107  Iowa  397,  78  N.  W.  24.  State   v.    Pepper,    31    Ind.    76; 

56;  Bank  v.  Hyde,  131  Mass.  77.  South  Berwick  v.  Hunter,  53  Me.  89; 

22.  Illinois. — Chicago  v.  Gage,  95  McCormick  v.  Bay  City,  23  Mich. 
111.  593.  457. 

Kentncky. — Dow-Hayden    Grocery       25.  Illinois. — Donnell   Mfg.   Co.  v. 

Jones,  49  111.  App.  327. 


67  Execution  of  the  Contract.         §  57 

One  who  saw  a  surety  sign  a  blank  bond  may  be  allowed  to 
testify  as  to  the  facts  within  his  knowledge  relating  to  the  sign- 
ing of  the  bond  by  such  person  and  as  to  stipulations  made  by 
him  at  the  time.    These  facts  are  properly  part  of  the  res  gestae.^' 

§  57.  Negotiable  Notes. — The  same  rule  applies  to  negotiable 
notes.  Thus,  where  a  party  to  such  an  instrument  intrusts  it  to 
the  custody  of  another  for  use  with  blanks  not  filled  up,  whether 
it  be  to  accommodate  the  person  to  whom  it  was  committed,  or  to 
be  used  for  the  benefit  of  the  signer  of  the  same,  such  instrument 
carries  on  its  face  the  implied  authority  to  fill  up  the  blanks 
necessary  to  perfect  the  same.  And  as  between  such  party  and 
an  innocent  transferee,  the  fonner  must  be  deemed  the  agent  of 
the  party  who  committed  the  note  to  his  care  in  filling  the  blanks 
necessary  to  perfect  the  instrument.^^  Thus,  sureties  signed  a 
note  in  blank  and  left  it  with  the  principal.  The  principal  filled 
the  blank  with  a  larger  sum  than  the  sureties  had  agreed  to  be- 
come liable  for,  and  delivered  it  to  the  creditor,  who  was  an  in- 
nocent holder  for  value ;  in  such  case  the  sureties  are  bound  for 
the  entire  amount.^^  So  if  a  surety  makes  it  a  condition  that  an- 
other shall  sign,  and  the  principal  forges  the  name  of  the  other 
surety,  the  first  one  will  be  held.^^  This  is  on  the  ground  that 
where  two  innocent  parties  must  be  losers  by  the  deceit  or  the 
fraud  of  another,  the  loss  must  fall  on  him  who  makes  it  possible 
to  be  thus  defrauded.^" 

But  under  the  l^egotiable  Instrument  Law  in  New  York,  where 

Indiana. — Rich  v.  Starbuck,  51  Ind.  the    agent    of    the    payee    filled    a 

87.  blank  with  an  amount  in  excess  of 

Massachusetts. — White  v.  Duggan,  that  agreed  upon,  it  appearing  that 

140      Mass.      18,     2      N.     E.      110;  the  payee  did  not  know  what  amount 

Danker  v.  Atwood,  119  Mass.  146.  was  agreed  upon. 

New  York.— Dedlick  v.  Doll,  54  N.  28.  Fullerton    v.    Sturges,    4    Ohio 

Y.  234.  St.  529. 

Ohio.— Schuyver    v.     Hawkes,     22  29.  Stoner  v.  Milliken,  85  111.  218; 

Ohio  St.  308.  York  County  Ins.  Co.  v.  Brooks,  51 

26.  Horton  v.  Stone,  32  R.  I.  499,  Mo.  506;  Selser  v.  Brock,  3  Ohio  St. 
80  Atl.  1.  302. 

27.  Angle  v.  Insurance  Co.,  92  U.  30.  Stoner  v.  Milliken,  85  111.  218; 
S.  330,  23  L.  Ed.  556;  Dow-Hayden  Donnell  Mfg.  Co.  v.  Jones,  49  111. 
Grocery  Co.  v.  Muncy,  24  Ky.  Law  App.  327;  Hun  v.  Nichols,  1  Salk. 
Rep.  2255,  73  S.  W.  1030,  holding  that  289. 

the  sureties  were  not  relieved  where 


§§  58,  59  Suretyship  and  Guaranty.  .68 

a  person  has  indorsed  a  blank  note  he  is  absolved  from  liability 
thereon  unless  it  is  filled  up  strictly  in  accordance  with  the  au- 
thority given  by  him  and  within  a  reasonable  time.^^ 

^  58. — Person  Signing  as  Principal. — It  is  a  general  rule  that  a 
party  cannot  contradict  his  own  note  or  bond.  So  where  one  ex- 
pressly agrees  to  be  bound  as  principal,  and  so  signs,  he  is  estopped 
from  asserting  against  the  obligee  or  payee  that  he  is  a  surety.^^ 
Because  when  one,  who  is  in  reality  only  a  surety,  signs  expressly 
as  principal,  he  must  be  held  in  that  capacity.^^ 

§  59.  Estoppel  of  Surety  to  Deny  Recitals  in  the  Instrument. — 
It  is  a  general  rule  that  sureties  are  estopped  to  deny  the  facts 
recited  in  their  obligations,  whether  true  or  false.^*  And  there  is 
said  to  be  no  exception  to  the  rule  that  the  fair  and  voluntary 
execution  of  a  sealed  instrument  is  conclusive,  upon  all  who  seal 

81.  Union    Trust   Co.   v.   McCrum,  Indiana. — Bray  v.  State,  78  Ind.  68. 

145  App.  Div.  (N.  Y.)   409,  129  N.  Y.  Maine.— Williamson   v.   Woodman, 

Supp.  1078;  Neg.  Inst.  Law,  §  33,  as  73  Me.  163. 

amended  by  Laws  of  1898,  ch.  336.  Maryland. — Aetna   Investment  Co. 

32.  Cprigg  V.  Bank,  10  Pet.  (U.  S.)  v.  Waters,  110  Md.  673,  73  Atl.  712; 

257,    9   L.   Ed.    416,   14   Pet.    (U.   S.)  Fridge  v.  State,  3  Gill.  &  J.  103. 

201,     10     L.     Ed.     419;     Waterville  Michigan. — Brockway  v.  Petted,  79 

Bank    v.     Redington,    52    Me.    466;  Mich.  620. 

Heath  v.  Bank,  44  N.  H.  174;   Dart  Minnesota.— Olson    v.    Royem,    75 

iy.  Sherwood,  7  Wis.  446.  Minn.  228,  77  N.  W.  818. 

,33.  McMillan    v.    Parkell,    64    Mo.  Mississippi. — Havenstein  v.  Gilles- 

286;    Picot  v.  Signiago,  22  Mo.  587;  pie,  73  Miss.  642. 

Derry    Bank    v.    Baldwin,    41    N.    H.  Missouri. — Hanley    v.    Filbert,    73 

434;  Clermont  Bank  v.  Wood,  10  Vt.  Mo.  34. 

582.  Nebraska. — Thompson  v.  Rush,  66 

See  §  210.  Neb.  7C8,  92  N.  W.  1060. 

34.  United  States. — Bruce  v.  United  New    York. — Harrison    v.    Wilkin, 

States.  17  How.  437,  15  L.  Ed.  129;  69  N.  Y.  412;   Thompson  v.  Denner, 

United  States  v.  Bradley,  10  Pet.  365,  16  App.  Div.  160,  44  N.  Y.  Supp.  723. 

9  L.  Ed.  343.  North    Carolina, — Pearre   v.   Folb, 

Arkansas.— Norton    v.    Miller,    25  123  N.  C.  239,  31  S.  E.  475;  Iredel  v. 

Ark.  108.  Barbee,  9  Ired.  L.  230. 

California, — People    v.    Huson,    78  Ohio. — Shroyer    v.    Richmond,    16 

Cal.  154.  Ohio  St.  455. 

Connecticnt. — Washington    Co.    v.  England. — Australian   Joint  Stock 

Ins.  Co.,  26  Conn.  42.  Bank  v.  Bailey  (1899),  App.  Cas.  396. 

Georgia. — Hines  v.  Mullins,  25  Ga. 
696. 


Q9  Execution  of  the  Contiiact.  §§  59a,  00 

it,  of  everything  admitted  in  it.^^  Thus,  sureties  on  a  bond  for  the 
delivery  of  goods  to  a  party,  provided  the  court  should  so  order, 
the  recitals  in  that  instrument  being  that  the  sheriff  had  made 
seizure  and  levy  on  the  goods,  cannot  deny  the  fact  that  the  sheriff 
had  made  seizure  and  levy  of  the  goods,  because  they  are  estopped 
to  deny  the  sufficiency  and  validity  of  the  seizure  of  the  goods  and 
levy  of  the  attachment.^® 

So  where  a  bond  recites  that  the  contract,  performance  of  which 
it  is  given  to  secure,  was  executed  on  a  certain  date,  the  sureties 
are  estopped  from  asserting  that  it  was  actually  signed  at  another 
and  subsequent  date.^^ 

Where  a  bond  which  was  executed  by  a  bank,  to  the  state  treas- 
urer, recited  that  the  treasurer  "  has  determined  to  and  will  de- 
posit "  certain  moneys  of  the  state  with  the  bank,  but  nothing 
was  said  as  to  the  amount  or  time  of  such  future  deposits  it  was 
held  that  parol  evidence  was  competent  to  show  what  was  in  fact 
agreed  between  the  treasurer  and  the  bank,  prior  to  the  execution 
of  the  bond.^« 

§  59,a.  Estoppel  to  Deny  Validity. — Where  a  bond  is  volun- 
tarily entered  into  and  the  principal  enjoys  the  benefits  it  was  in- 
tended to  secure,  and  breach  occurs,  it  is  then  too  late  to  raise  the 
question  of  its  validity.  The  parties  are  estopped  from  availing 
themselves  of  such  defense.^^ 

§  60.  Denying  Valid  Appointment  of  Principal. — Sureties  can- 
not deny  the  valid  appointment  of  their  principal  to  office  in 
order  to  avoid  liability.  In  other  words,  if  sureties  have  signed 
the  bond  they  are  responsible.  Where  a  bond  is  voluntarily  en- 
tered into,  the  sureties  are  estopped  by  the  recitals  in  the  bond 
which  admit  the  due  appointment  of  ther  principal.^"  By  execut- 
es. Town  of  Point  Pleasant  v.  quoted  in  Daniels  v.  Tearney,  12 
Greenlee,  63  W.  Va.  207,  60  S.  E.  Otto  (U.  S.)  415,  26  L.  Ed.  187;  Town 
601.  of  Point  Pleasant  v.  Greenlee,  63  W. 

86.  Hanley  v.  Filbert,  73  Mo.  34.        Va.  207,  60  S.  E.  601.   See,  also,  Klein 

87.  Red  Wing   Sewer  Pipe  Co.  v.    v.   German   National   Bank,   69  Ark. 
Donnelly,  102  Minn.  192,  113  N.  W.  1.    140,  61  S.  W.  572,  citing  Maledon  v. 

38.  Hurlburt  v.  Kephart,  50  Colo.    Leflore,  69  Ark.  140,  61  S.  W.  572. 
353,  115  Pac.  521.  40.  Cutler    v.    Dickinson,    8    Pick. 

39.  United    States    v.    Hodson,    10    (Mass.)  387. 

Wall.    (U.   S.)    395,   19   L.   Ed.   937,       Estoppel  by  recitals  in  guardians* 


§    61'  SlURETYSHIP    AND    GuAKANTT.  l70 

ing  the  bond  they  obtain  for  their  principal  certain  rights  of  ac- 
tion, and  therefore  cannot  escape  liability  by  denying  their  own. 
bond." 

And  so  the  sureties  are  liable,  though  their  principal  has  been 
continued  in  the  same  capacity,  after  he  has  failed  to  perform 
his  duty,  of  which  the  surety  has  not  been  advised/^  And  the 
general  rule  is  that  sureties  cannot  deny  the  appointment  to  office 
of  their  principal ;  that  is,  set  up  that  such  appointment  was  in- 
valid/^ And  the  fact  that  the  bond  is  not  prescribed  by  statute 
does  not  necessarily  make  it  invalid,  although  given  by  a  public 
officer  as  security  for  the  discharge  of  his  duties,  if  they  are  not 
unlawful ;  if  voluntarily  given,  such  bonds  are  binding  upon  all 
the  parties." 

§  6i,  Sureties  Cannot  Deny  the  Incorporation  of  Corporate 
Bodies  With  Whom  Their  Principal  Deals. — Obligors  in  a  bond 
are  estopped  to  deny  the  corporate  existence  of  bodies  to  whom  it 
was  given.  Thus,  the  sureties  on  a  treasurer's  bond  cannot  deny 
the  validity  of  the  corporate  organization  of  the  corporation  who 
is  the  obligee.^^  And  so  where  a  person  becomes  surety  upon  a 
bond  given  to  a  corporation,  he  cannot  deny  its  legal  existence." 

Neither  can  sureties  deny  the  acts  of  the  corporation,  by  declar- 
ing that  the  corporate  authority  has  been  extended  beyond  legiti- 
mate bounds." 

bonds  as  to  appointment  of  princi-  States  v.  Tingey,  5  Pet.  (U.  S.)   129, 

pals,  see  §  266.  5  L.  Ed.  115,  131;   Tylor  v.  Hand,  7 

Estoppel  by  recitals  in  bonds   of  How.  (U.  S.)  573,  581,  12  L.  Ed.  824. 

private  officers  and  agents  as  to  ap-  Compare  Thomas  v.  Burrus,  23  Miss, 

pointment  of  principal,  see  §  299.  550;  Hudson  v.  Winslow,  35  N.  J.  L. 

41.  Gray    v.     State,     78     Ind.     68;  437. 

Shroyer   v.    Richmond,    16    Ohio   St.  45.  Father  Matthew   Soc.   v.  Fitz- 

455.  Williams,  84  Mo.  407. 

42.  Home  Ins.  Co.  v.  Holway,  55  46.  Ft.  Wayne,  etc.,  Co.  v.  Deane, 
Iowa  571,  8  N.  W.  457;  Phooenix  Ins.  10  Ind.  563;  White  v.  Coventry,  29 
Co.  V.  Findley,  59  Iowa  591,  13  N.  W.  Barb.  (N.  Y.)  305;  Trumbull  Co.  v. 
738.  Horner,  17  Ohio  407;  Singer  Mfg.  Co. 

48.  Otto  V.    Jackson,    35    111.    349;  v.  Bennett,  28  W.  Va.  16. 

Williamson  v.  Goodman,  73  Me.  163;  47.  Indiana. — Wilson  v.  Monticello. 

White  V.  Weatherbee,  126  Mass.  450;  85  Ind.  10. 

Burnet  v.  Henderson,  21  Tex.  588.  Michigan.— Denison  v.   Gibson,  24 

44.  United    States    v.    Bradley,    10  Mich.  187. 
Pet.  (U.  S.)  361,  9  L.  Ed.  343;  United 


^1  Execution  of  the  Contract.  §§  62-64 

§  62.  Denying  Court's  Jurisdiction. — When  there  is  an  action 
on  a  bond  given  in  the  ordinary  course  of  legal  business,  the  sure- 
ties will  be  estopped  to  deny  the  jurisdiction  of  the  court.  In 
many  cases  bonds  are  given,  and  when  accepted  by  the  court  the 
principal  and  sureties  are  estopped  to  deny  their  validity/*  Thus 
when  the  principal  tenders  a  bond  to  the  court,  such  as  the  law 
requires,  justice  requires  that  neither  the  principal  nor  the  sure- 
ties shall  be  permitted  to  question  the  validity  of  the  bond  or  that 
the  court  did  not  have  jurisdiction  of  the  subject-matter.^* 

§  63.  Attacking  Bond  in  Collateral  Proceedings. — Neither  can 
the  principal  or  sureties  attack  a  bond  in  collateral  proceedings 
upon  the  ground  that  it  is  void.^"  And  so  sureties  for  purchase- 
money,  with  notice  of  defects  in  the  title  to  the  land  purchased, 
are  estopped  from  setting  up  the  bad  title  in  a  suit  for  the  pur- 
chase money.^^  Under  the  same  principle  a  surety  on  a  bond  for 
alimony  cannot  deny  that  the  woman  receiving  the  alimony  was 
the  wife  of  his  principal.^^ 

§  64.  Relations  After  Judgment. — After  the  debt  has  been  re- 
duced to  judgment,  the  relation  of  principal  and  surety  has  not 
heen  changed.  The  merger  of  the  contract  into  judgment  does  not 
change  their  relations.  Its  only  effect  is  a  change  in  form  of  the 
credit  as  between  the  principal  and  surety.^^  The  judgment  does 
■not  abrogate  the  relation  of  suretyship  between  the  parties." 

Missouri.  —  Mississippi      Co.      v,  51.  Ellis  v.  Adderton,  88  N.  C.  472. 

Jackson,  51  Mo.  23.  52.  Commissioners  v.  O'Rourk,  34 

New   York.— People   v.   Burton,   5  Hun  (N.  Y.)  349. 

Seld.  176;    State  v.  Buffalo,  2  Hill.  53.  Massachusetts. — Davis  v.  May- 

(N.  Y.)  434.  nard,  9  Mass.  242. 

PennsylTania.     —     Baehmer      t.  Minnesota, — Moss   v.   Pettingill,   3 

Schuylkill,  49  Pa.  St.  452,  Minn.  217. 

Tennessee.— McLean    v.    State,    8  MissonrL— Smith  v.  Rice,  27  Mo. 

Heisk.  22.  505 

48.  Waddell   v.   Bradway,   84   Ind.       ^^^  Tork.-Bangs  v.  Strong,  4  N. 
537;  Harbough  V.  Albertson,  102  Ind.    ^   ^^^ 

69,  1  N.  E.  298.  \^.  ' 

49.  Carver  v.  Carver,  77  Ind.  498.       Ohio.-Blazer  v.  Bundy,  15  Ohio  St. 

50.  Stovall  V.  Banks,  10  Wall.  (U.   ^'^• 

S.)    583,   19   L.   Ed.   1036;    Nevitt   v.  Pennsylvania,— Commonwealth    v. 

Woodburn,  160  111.  203,  43  N.  E.  385;  Miller,  8  Serg.  &  R.  452. 

Monteith  v.  Commonwealth,  15  Gratt.  54.  Carpenter    v.    Denon,    5    Ala, 

<Va.)  172,  185.  710;    Cowen   v.   Culbert,  3  Ga.  239; 


§  65  Suretyship  and  Guaranty.  72^ 

§  65.  Effect  of  Judgment  on  Surety. — It  is  said  to  be  a  gene- 
ral rule  that  a  judgment  against  a  principal  is  admissible  as 
prima  facie  evidence  in  an  action  against  the  surety,""  and  that 
sureties  upon  official  bonds  are  not  concluded  by  a  decree  or 
judg-ment  against  their  principal  unless  they  have  had  their  day 
in  court  or  an  opportunity  to  be  heard."^  There  is,  however,  a 
large  class  of  cases  especially  those  of  guardian  and  administra- 
tor bonds  which  are  sometimes  spoken  of  as  exceptions  to  the 

Chambers  v.  Cochran,  18  Iowa  159;  Georgia. — Bennett   v.    Graham,    71 

Morton  v.  Rice,  19  Mo.  263.  Ga.  211  (administrator's  bond). 

i>a.  United  States. — Moses  v.  United  Iowa. — Charles     v.     Hoskins,     14 

States,  166  U.  S.  571,  41  L.  Ed.  1119,  Iowa  471    (sheriff's  bond). 

17  Sup.  Ct.  682,  holding  that  the  judg-  Kansas.— Park  v.  Ensign,  66  Kan. 

ment  in  an  action  on  the  bond  of  a  50,  71  Pac.  230,  97  Am.  St.  Rep.  352 

public  officer  was  properly  admitted  (promissory  note), 

in  evidence  against  the  surety  and  Kentucky.  —  Commonwealth       v. 

proved,     at     least     prima     facie,     a  Bracken,  17  Ky.  Law  Rep.  785,  32  S. 

breach  of  the  bond  by  showing  the  W.  609    (guardian's  bond), 

amount  of  public  moneys  which  the  Maryland.  —  Jenkins    v.    State,    76 

principal  had  failed  to  faithfully  ex-  Md.   255,  23  Atl.   608,   790    (adminis- 

pend  and  honestly  account  for.  tration  bond). 

Union    Guaranty   &   Trust    Co.    v.  Tennessee.— Barksdale  v.  Butler,  6 

Robinson,   79  Fed.   420,  24   C.   C.   A.  Lea  450  (administration  bond). 

650,  holding  a  judgment  against  an  Virginia. — Craddock   v.   Turner,   6 

insurance  company,  in  the  absence  Leigh  116  (judgment  against  admin- 

of   fraud    or   collusion   to  be    prima  istrator      not      conclusive      against 

facie  evidence  against  the  surety  in  surety)  ;   Jacobs  v.  Leigh,  2  Leigh  393 

a  bond  executed  by  the  company  for  (bond  of  deputy  sheriff), 

the  benefit  of  its  policy  holders.  West  Virginia,- State  v.  Nutter,  44 

Arkansas.— Baxter  County  Bank  v.  W.  Va.  385,  30  S.  E.  67  (bond  to  ob- 

Ozark,   98  Ark.   143,   135   S.  W.   819,  tain  license  to  sell  liquors), 

holding  a  judgment  against  an  in-  Wisconsin. — Grafton     v.     Hinkley, 

surance  company,  in  the  absence  of  111  Wis.  46,  86  N.  W.  859   (contrac- 

fraud  or  collusion,  to  be  prima  facie  tor's  bond). 

evidence  against  the  surety  in  a  bond  Judgment  by  default  is  prima  facie 

executed    by    the    company    for    the  evidence  (contractor's  bond) : 

benefit  of  its  policy  holders.  United  States  v.  Rundle,  107  Fed. 

Smith  v.  Smithson.  48  Ark.  261,  227,  46  C.  C.  A.  251,  52  L.  R.  A.  505. 
holding  an  order  of  the  probate  See,  also,  Jacobs  v.  Hill,  2  Leigh  393, 
court,  which  was  a  final  settlement  holding  a  judgment  by  confession  to 
of  the  guardian's  accounts  after  the  be  admissible  evidence  against  surety- 
close  of  his  trust,  which  fixed  on  bond  of  deputy  sheriff, 
the  amount  of  his  deficit  sufficient  to  56.  Irwin  v.  Backus,  25  Cal.  214; 
lay  the  foundation  for  an  action  Xevitt  v.  Woodburn,  160  111.  203,  4J 
against  the  surety.  N.  E.  385. 


V3 


Execution  of  the  Contract. 


§  65 


general  rule,"  which  sustain  the  doctrine  that  sureties  are  bound 
by  the  judgment  against  their  principal  to  the  same  extent  that 
their  principal  is,^**  and  such  judgment  is  conclusive  against  the 


67.  Irwin  v.  Backus,  25  Cal.  214; 
Nevitt  V.  Woodburn,  160  111.  203,  43 
N.  E.  285. 

58.  United  States,  —  Stovall  v. 
Banks,  10  Wall.  583,  19  L.  Ed.  1036, 
holding  that  sureties  in  an  adminis- 
tration bond  are  bound  by  a  decree 
against  their  administrator  finding 
assets  in  his  hands  and  non-payment 
of  them  over,  to  the  same  extent  to 
which  the  administrator  himself  is 
bound. 

Alabama. — Martin  v.  Tally,  72  Ala. 
23,  holding  that  a  decree  rendered 
against  an  administrator,  on  final 
settlement  of  his  accounts,  is  con- 
clusive on  his  sureties,  in  the  ab- 
sence of  fraud  or  collusion,  as  to  the 
matters  of  account,  but  not  as  to  the 
factum  of  the  bond,  or  other  defenses 
personal  to  the  sureties. 

California. — Irwin  v.  Backus,  25 
Cal.  214,  holding  that  administration 
bonds  form  an  exception  to  the  gen- 
eral rule  that  sureties  upon  official 
bonds  are  not  concluded  by  a  decree 
or  judgment  against  their  principal 
unless  they  have  had  their  day  in 
court  or  an  opportunity  to  be  heard 
in  their  defense. 

Georgia. — Waldrop  v.  Wolff,  114 
Ga.  610,  40  S.  E.  830,  holding  that  the 
surety  on  a  bond  given  by  defendant 
in  an  action  of  trover  for  the  event- 
ual condemnation  money  is  bound 
by  the  judgment  against  the  defend- 
ant and  cannot,  after  judgment, 
raise  any  question  which  could  have 
been  raised  by  the  principal  before 
judgment. 

Illinois.  —  Moulding  v.  Wilhartz, 
169  111.  422,  48  N.  E.  189,  holding  that 
the  sureties  on  the  bond  of  an  as- 
signee in  insolvency  are  concluded 


by  the  findings  of  the  County  Court 
as  to  the  amount  unaccounted  for 
that  came  to  the  hands  of  the  as- 
signee and  which  he  was  ordered 
by  the  County  Court  to  pay  over  and 
that  the  sureties  are  not  entitled  to 
have  such  matter  retried. 

Nevitt  V.  Woodburn,  160  111.  203,  43 
N.  E.  285,  holding  that  the  liability 
of  a  surety  upon  an  administration 
bond  is  fixed  by  the  judgment  against 
his  principal,  sureties  upon  such 
bonds  being  an  exception  to  the  gen- 
eral rule  as  to  official  bonds. 

Housh  V.  People,  66  111.  178,  hold- 
ing an  order  from  court,  having  ju- 
risdiction, finding  the  amount  in  an 
executor's  hands,  appointing  a  suc- 
cessor, and  requiring  him  to  pay 
over  such  sum  to  the  successor  to 
be  conclusive  as  to  the  amount  due 
from  the  executor  to  the  estate,  un- 
less impeached  for  fraud. 

Indiana. — See  State  ex  rel.  Favor- 
ite v.  Slauter,  80  Ind.  597,  holding 
that  a  guardian's  final  report,  settle- 
ment and  discharge  by  the  court  are 
res  adjudicata  of  all  matters  therein 
and  cannot  be  collaterally  attacked 
in  a  suit  upon  the  bond. 

Kentucky. — Hindman  v.  Lewman, 
23  Ky.  Law  Rep.  179,  63  S.  W.  478, 
63  S.  W.  478,  holding  that  in  an  action 
to  ascertain  the  amount  of  defalca- 
tion of  an  assignee  for  the  benefit  of 
creditors  his  sureties  are  bound  by 
the  judgment,  whether  parties  to  the 
action  or  not. 

Massachusetts. — McKim  v.  Haley, 
173  Mass.  112,  54  N.  E.  257,  holding 
that  sureties  on  an  administrator's 
bond  are  bound  by  a  judgment  re- 
covered against  him. 


g    65  SuRETYiSllIP    AND    GuAKANTY.  74 

sureties  in  the  absence  of  fraud  or  collusion. ^^  And  if  the  effect 
of  the  obligation  is  such  that  the  surety  is  to  be  bound  by  the  re- 
sults of  the  litigation  between  others  he  is,  in  the  absence  of  fraud 
or  collusion,  bound  by  such  results.  Where  the  bond  is  not  merely 
to  pay  damages,  but  is  an  indemnity  against  liability  by  judg- 
ment, it  is  conclusive.'^*^  If  it  undertakes  to  pay  such  judgment 
as  may  be  recovered,  that  judgment  is  conclusive,  because  that 
judgment  is  the  event  on  the  happening  of  which  the  surety  agrees 
to  pay." 

Heard  v.  Lodge,  20  Pick.  53,  hold-   Court  on  the  guardian's  accounting 
ing  same  as  preceding  case.  as  to  the  amount  due  from  him  to 

Ohio. — Richardson  v.  Peoples'  Na-  the  ward,  where  the  guardian  was 
tional  Bank,  57  Ohio  St.  299,  48  N.  E.  duly  cited  and  the  sureties  appeared 
1160,  holding  that  in  an  action  on  at  the  hearing.  Also  holding  that 
replevin  undertaking  it  is  not  com-  they  would  be  concluded  without 
petent  for  the  surety  to  question  the  such  an  appearance  on  their  part, 
validity  of  the  judgment  against  the  59.  Alabama. — Martin  v.  Tully,  72 
principal  on  any  ground  other  than   Ala.  23. 

fraud  or  mistake.     In  such  case  the       Illinois. — Elder    v.    Prussing,    101 
judgment   is    as    conclusive    against    111.  App.  655. 
the  surety  as  against  the  principal.       Kansas. — Kennedy    v.    Brown,    21 

O'Conner    v.    State,    18    Ohio    225,    Kan.  171. 
holding  judgment  against   adminis-       Massacbusetts. — Way  v.  Lewis,  115 
trator  conclusive,   except  for   fraud   Mass.  26. 
or  mistake.  Ohio. — Richardson  v.  People's  Na- 

Wiscousin.— Meyer    v.    Barth,    97    tional  Bank,  57  Ohio  St.  299,  48  N. 
Wis.  352,  72  N.  W.  748,  holding  that   E.  1160. 

In  the  absence  of  fraud  or  collusion,       Washington.  —  Friend  v.  Ralston, 
the   sureties    upon    a    probate    bond    35  Wash.  422,  77  Pac.  794. 
are  concluded  by  the  decree  of  the       Wisconsin. — Meyer    v.    Barth,    97 
proper  court,  rendered  upon  an  ac-    Wis.  352,  72  N.  W.  748. 
counting  of  their  principal,  as  to  the       60.  California. — Riddle    v.    Baker, 
amount  of  their  principal's  liability,    13  Cal.  295. 

even  though  they  were  not  parties       Michigan. — Hosie     v.     Hart,     141 
to  such  accounting.  I\Iich.  679,  105  N.  W.   32;    People  v. 

Holden  v.  Curry,  85  Wis.  504,  55    Rice,  79  Mich.  354,  44  N.  W.  790. 
N.  W.  965,  holding  that  a  judgment       New  York. — Conner  v.  Reeves,  103 
of   the    County    Court,    upon    settle-    N.  Y.  527,  9  N.  E.  437. 
ment  of  the  final  account  of  an  ad-       Tirginia. — Crawford    v.    Turk,    24 
ministrator  de  bonis  non,   charging   Graft.  176. 

him  with  a  certain  sum,  is  conclu-       West  Virginia. — See  State  v.  Nut- 
sive  as  against  the  sureties.  ter,  44  W.  Va.  385,  30  S.  E.  67. 

Shepard  v.   Pebbles,  38   Wis.    373,       61.  Crawford    v.    Turk,    24    Gratt. 
holding  that  sureties  on  a  guardian's    (Va.)  176;  State  v.  Nutter,  44  W.  Va. 
bond   for  a  sale   of  real   estate  are    385,  30  S.  E.  67. 
concluded  by  the  order  of  the  County 


;75(  Scope  of  Sueety  Contbact.  §  66 


CHAPTER  IV. 

SCOPE  OF  SURETY  CONTBACT. 

Section  66.     Extent  of  Surety's  Contract. 

67.  Construction  of  Contract  —  At  Law. 

67a.  Where  Bond  Makes  a  Contract  a  Part  Thereof. 

67b.  Statutory  Bond  —  Estoppel. 

68.  Construction  of  Contract  —  In  Equity. 

69.  Liability  for  Past  Defaults  of  Principal. 

70.  Liability  Limited  to  a  Fixed  Time. 

71.  Time  Limited  to  a  Subsequent  Period 

72.  Employment  or  Condition  Changed  by  Employer  or  by  the 

Legislature. 

73.  Sureties  in  Legal  Proceedings  —  Order  of  Liability. 

74.  Only  Liable  for  Penalty  of  Bond. 

75.  Misappropriation  of  Funds. 

76.  Increase  of  Funds. 

77.  Surety  May  Limit  His  Liability. 

78.  Forged  Signatures. 

79.  Additional  Employment. 

80.  Act  of  Principal  Not  in  Line  of  His  Business. 
SI.  Becoming  Surety  for  Payment  of  Rent. 

82.  Tenant  Holding  Over. 

83.  Principal  Associating  With  Others. 

84.  Several  Principals  —  Partnership. 

85.  Death  of  Surety. 

86.  Construing  a  Joint  Obligation  as  Several. 

87.  Revoking  Suretyship. 

88.  Default  of  Principal. 

89.  Revival  of  Surety's  Liability. 

90.  Part  Payment  by  One  of  Several  and  Joint  Debtors. 

91.  Absence  of  Principal  from  State. 

92.  Disability  of  Principal. 

93.  Conflict  of  Laws. 

Sec.  66.  Extent  of  Surety's  Contract. — It  is  well  established 
that  the  obligation  of  a  surety  is  not  to  be  extended  beyond  what 
the  terms  of  the  contract  fairly  import.  So  a  surety  has  a  right 
to  stand  upon  the  very  terms  of  his  contract,  and  if  he  does  not 
assent  to  any  variance  of  it,  and  a  variation  is  made,  such  varia- 
tion operates  to  annul  his  contract.^     Thus,  when  a  surety  stands 

1.  United  States.— Lee  v.  Dick,  10  United  States,  167  Fed.  460,  03  C.  C. 
Pet.  482,  9  L.  Ed.  503;  McMullen  v.  A.  96. 


§  06 


Suretyship  and  Guakanty. 


76 


bound  for  the  fidelity  or  capacity  of  a  principal  in  an  ofiicial  ca- 
pacity, if  the  nature  of  the  employment  is  so  changed  by  the  act 
of  the  employer  that  the  risk  of  the  surety  is  materially  altered 
from  what  was  contemplated  by  the  parties  at  the  time  of  enter- 
ing into  the  bond,  the  surety  has  a  right  to  say  that  his  obligation 
does  not  extend  to  such  altered  state  of  things ;  this  is  the  general 
rule  recognized  by  all  courts.^ 

So  the  surety  cannot  be  held  beyond  the  precise  terms  of  his 
contract.    This  is  the  well  settled  rule,  both  at  law  and  in  equity.* 


District     of     Columbia.— Catholic 

University  of  America,  32  App.  D.  C. 
195. 

Indiana,— Parker  Land  &  Improve- 
ment Co.  V.  Ayers,  43  Ind.  App.  513, 
87  N.  E.  1062. 

Iowa.  —  Van  Buren  County  v. 
American  Surety  Co.,  137  Iowa  490, 
115  N.  W.  24. 

Michigan. — Rodgers  Shoe  Co.  v. 
Coon,  157  Mich.  547,  122  N.  W.  133; 
Loclie  v.  McVean,  33  Mich.  473. 

New  Jersey. — Hoey  v.  Jarman,  39 
N.  J.  L.  523. 

New  York. — Crist  v.  Burlingham, 
62  Barb.  351. 

Pennsylvania. — Bauschard  Co.  v. 
Fidelity  &  Casualty  Co.  of  New  York, 
21  Pa.  Super.  Ct.  370. 

England. — Australian  Joint  Stock 
Bank  v.  Bailey  (1899),  App.  Cas. 
396. 

See,  also,  further  in  this  connec- 
tion. Chap.  V.  herein,  relating  to  dis- 
charge of  surety. 

"A  surety  is  a  favored  debtor;  his 
rights  are  zealously  guarded,  both 
at  law  and  in  equity,  and  the  slight- 
est fraud  on  the  part  of  the  creditor, 
touching  the  contract,  annuls  it." 
Magee  v.  Manhattan  Life  Ins.  Co.,  92 
U.  S.  93,  23  L.  Ed.  699,  per  Mr.  Jus- 
tice Swayne,  quoted  in  Putney  v. 
Schmidt  (N.  M.  1911),  120  Pac.  720. 

See,  also,  American  Bonding  Co.  v. 
Loeb,  47  Wash.  447,  448,  92  Pac.  282. 


3.  United  States.— Miller  v.  Stew- 
art, 9  Wheat.  680,  6  L.  Ed.  189. 

Maryland. — First  Nat.  Bank  of 
Baltimore  v.  Gerke,  68  Md.  449,  13 
Atl.  358. 

New  Jersey. — Manufacturers'  Nat. 
Bank  v.  Dickerman,  41  N.  J.  L.  448. 

Tennessee. — Mumford  v.  Railroad 
Co.,  2  Lea  393. 

England.— Pybus  v.  Gibb,  6  El.  & 
B.  902. 

See  §  72  herein. 

4.  United  States. — Streeper  v.  Vic- 
tor S.  Mach.  Co.,  112  U.  S.  676,  5  S. 
Ct.  327,  28  L.  Ed.  852;  Smith  v. 
United  States,  2  Wall.  219,  17  L.  Ed. 
788;  McKicken  v.  Webb,  6  How.  292, 
12  L.  Ed.  443;  Brown  v.  United 
States,  152  Fed.  984,  82  C.  C.  A.  318; 
United  States  Fidelity  &  G.  Co.  v. 
Board  of  Commissioners,  145  Fed. 
144. 

Alabama. — Bay  Shore  Lumber  Co. 
V.  Donovan,  149  Ala.  232,  42  So.  1014. 

Arkansas. — Miller  v.  Friedheim, 
82  Ark.  592,  102  S.  W.  372. 

California. — Van  Valkenburgh  v. 
Oldham,  12  Cal.  App.  572,  108  Pac. 
42;  Bergevin  v.  Wood,  11  Cal.  App. 
643,  105  Pac.  935. 

District  of  Columbia. — Moulton  v. 
Cornish,  33  App.  D.  C.  228;  Catholic 
University  of  America  v.  Morse,  32 
App.  D.  C.  195. 

Illinois. — Phoenix  Manufacturing 
Co.  V,  Bogardus,  231  111.  528,  S3  N.  E. 


771  Scope  of  Sueety  Contract.         §  6T 

And  the  scope  of  his  liability  is  to  be  gathered  from  the  whole 
instrument  in  which  the  obligation  is  contained.^ 

§  67.     Construction  of  Contract — At  Law. — The  terms  used 
and  the  language  employed  in  guaranties,  letters  of  credit,  and 

284;  McCartney  v.  Ridgway,  160  111.  Martin  v.  Whites,  128  Mo.  App.  117, 
129,  43  N.  E.  826;  People  v.  Toomey,  106  S.  W.  608;  Shine  v.  Bank,  70  Mo! 
122    111.   308,    13    N.   E.    521;    Mystic    524. 

Works  of  the  World  v.  United  States  Nebraska, — Griswold  v.  Hazels,  62 
Fidelity  &  Guaranty  Co.,  152  111.  App.  Neb.  888,  87  N.  W.  1047;  Hopewell  v. 
223;  McDonald  v.  Harris,  75  111.  App.  McGrew,  50  Neb.  789,  70  N.  W.  397; 
111-  Lee  V.  Hastings,  13  Neb.  508,  14  N. 

Indiana.  —  Parker  Land  &  Im-  W.  476. 
provement  Co.  v.  Ayers,  43  Ind.  App.  New  York. — National  Park  Bank 
512,  87  N.  E.  1062;  Citizens'  St.  Ry.  v.  Koehler,  204  N.  Y.  174,  97  N.  E. 
Co.  V.  Albright,  14  Ind.  App.  433,  42  468;  Merchants'  Nat.  Bank  v.  Hall, 
N.  E.  238;  Lafayette  v.  James,  92  83  N.  Y.  338;  McCluskey  v.  Crom- 
Ind.  240.  well,  11  N.  Y.  593;   Chicago  Crayon 

lOTva. — Webster  Co.  v.  Hutchinson,    Co.  v.  Slattery,  67  Misc.  R.  148,  123 
60  Iowa  721,  9  N.  W.  901,  12  N.  W.    N.  Y.  Supp.  987. 
534.  Ohio.— McGovney  v.  State,  20  Ohio 

Kansas.— Ryan    v.    Williams,    29    St.  93. 
Kan.  487.  PennsylTania.— Bessemer  Coke  Co. 

Louisiana. — New  Orleans  Canal  &    v.  Gleason,  223  Pa.  84,  72  Atl.  257; 
Banking  Co.  V.  Hagan,  1  La.  Ann.  62.    Whelen   v.    Boyd,    114    Pa.    St.    228; 

Maine. — Manufacturers'    Bank    v.    Banschard  Co.  v.  Fidelity  &  Casualty 
Cole,  39  Me.  188.  Co.  of  New  York,  21  Pa.  Super.  Ct. 

Maryland.— State    v.    Dayton,    101    370. 
Md.  598,  61  Atl.  624;  Howard  County        Texas. — Ryan   v.   Morton,  65  Tex. 
Com'rs  V.  Hill.  88  Md.  Ill,  41  Atl.  61.    258;  May  v.  Chicago  Crayon  Co.  (Civ. 

Michigan.  —  Gunn     v.     Geary,     44    App.   1912),   147   S.  W.   733;    United 
Mich.  615,  7  N.  W.  235.  States   Fidelity   &   Guaranty   Co.   v. 

Minnesota. — Tomlinson    v.     Simp-    Jasper,   56   Tex.   Civ.   App.   236,   120 
son,  33  Minn.  443,  23  N.  W.  864.  S.  W.  1145. 

Missouri.— Utter  son  v.  Elmore,  154       Utah.— Smith  v.  Bowman,  32  Utah 
Mo.  App.  646,  136  S.  W.  9;   State  ex    33,  88  Pac.  687. 

rel.  Zimmerman  v.  Shafer,  152  Mo.  Virginia. — Burson  v.  Andes,  83  Va. 
App.   538,  134   S.  W.  671;    Moore  v.    445. 

Title  Guaranty  &  Trust  Co.  of  Scran-       West  Virginia, — State  v.  Nutter,  44 
ton,  151  Mo.  App.  256,  131  S.  W.  477;    W.  Va.  385,  30  S.  E.  67. 
Harris  v.  Taylor,  150  Mo.  App.  291,        England. — Bowmaker  v.  Moore,  7 
129  S.  W.  995;   Eau  Claire-St.  Louis    Price  223. 

Lumber  Co.  v.  Banks,  136  Mo.  App.       5.  Australian  Joint  Stock  Bank  v. 
44,  117  S.  W.  611;  Reissans  v.  Whites,    Bailey  (1899),  App.  Cas.  396. 
128  Mo.   App.   135,   106   S.  W.   603;        See  §  67  herein. 


§  67 


Suretyship  and  Guaeanty. 


7a. 


other  obligations  of  sureties,  must  have  a  reasonable  interpreta- 
tion, according  to  the  intent  of  the  parties,  as  disclosed  by  the  in- 
strument, read  in  the  light  of  surrounding  circumstances  and  pur- 
pose for  which  it  was  made.'  And  the  surety  is  liable  to  the 
same  extent  as  the  principal,  and  such  liability  need  not  be  fixed 
by  a  judgment  of  court.^  And  where  the  surety  states  the  amount 
for  which  he  will  be  liable,  that  fixed  the  extent  of  his  liability.* 
The  liability  of  a  surety  must  be  ascertained  by  reference,  not  to 
the  recital  alone,  but  to  the  bond  in  its  entirety.^ 

It  is  unquestionably  the  well  settled  rule  of  law  that  a  surety 


6.  United  States.  —  United  States 
Fidelity  &  Guaranty  Co.  v.  Board  of 
Com'rs  of  Woodson,  145  Fed.  144,  76 
C.  C.  A.  114. 

Colorado.— Covey  v.  Schiesswohl, 
50  Colo.  App.  68,  114  Pac.  292. 

Connecticut.— Lewis  v.  Dwight,  10 
Conn.  95. 

Illinois.— McDonald  v.  Harris,  75 
111.  App.  111. 

Indiana.  —  Barker  v.  McClelland 
(Ind.  App.  1912),  98  N.  E.  300. 

jowa.  —  Van  Buren  County  v. 
American  Surety  Co.,  137  Iowa  490, 
115  N.  W.  24. 

Maryland.— First  Nat.  Bank  of 
Baltimore  v.  Gerke,  68  Md.  449,  13 
Atl.  358. 

Missouri.r— Board  of  Education  of 
City  of  St.  Louis  v.  United  States 
Fidelity  &  Guaranty  Co.,  155  Mo. 
App.  109,  134  S.  W.  18. 

Nebraska,— Griswold  v.  Hazels,  62 
Neb.  888,  87  Neb.  1047. 

Jifew  York.— De  Camp  v.  Bullard, 
33  App.  Div.  627,  53  N.  Y.  Supp.  1102. 

Tirginia, — Kirscbbaum  v.  Blair,  98 
Va.  35,  34  S.  E.  895. 

England.— Mason  v.  Pritchard,  12 
East  227. 

See,  also,  cases  cited  in  following 
notes. 

"  The  clear  intent  of  the  parties  is 
not  to   be  violated  or  ignored,  but 


such  intent  is  to  be  gathered  from 
the  language  of  the  instrument  fairly 
read  in  the  light  of  all  the  circum- 
stances attending  its  making  and  the 
apparent  purpose  it  was  intended  to 
serve."  Van  Buren  County  v.  Ameri- 
can Surety  Co.,  137  Iowa  490,  115  N. 
W.  24. 

A  bond  executed  by  a  partner  to 
his  co-partner  to  pay  them  certain 
sums  due  from  him  to  them  is  to  be 
construed  according  to  the  language 
used  in  the  instrument  altogether  and 
from  the  circumstances  and  condi- 
tions existing  at  the  time  of  its  exe- 
cution, and  in  the  absence  of  fraud 
or  mistake  the  rights  of  the  con- 
tracting parties  will  be  determined  by 
the  contract  as  it  is  actually  written. 
Barker  v.  McClelland  (Ind.  App. 
1912),  98  N.  E.  300. 

7.  Fayette  Title  &  Trust  Co.  v. 
Maryland  P.  &  W.  V.  T.  &  T.  Co. 
(U.  S.  C.  C),  180  Fed.  928;  Kroncke 
V.  Madsen,  56  Neb.  609,  77  N.  E.  202. 

8.  Bullowa  v.  Orgo,  57  N.  J.  Eq. 
428,  41  Atl.  494. 

9.  Wilson  v.  Whitmore,  92  Hun  (N. 
Y.)  466,  36  N.  Y.  Supp.  550,  affirmed 
Wilson  V.  Webber,  157  N.  Y.  693,  51 
N.  E.  1094. 

See  Moulton  v.  Cornish,  33  App. 
D.  C.  228. 


79 


Scope  of  Surety  Conteact. 


§  6T 


is  entitled  to  a  somewhat  rigid  construction  of  his  contract;  but 
before  this  rule  is  applied,  his  contract  is  subject  to  the  same 
construction  as  any  other  contract,  in  order  to  ascertain  and  give 
effect  to  the  intent  of  the  parties,  and  it  is  not  until  this  is  as- 
certained that  its  language  is  to  be  regarded  as  strictissimi  juris}'' 
The  rule  that  the  contract  of  suretyship  is  strictissimi  juris  is 
not  a  rule  of  construction,  but  a  rule  which  governs  the  applica- 
tion of  the  contract,  after  its  meaning  has  been  ascertained.  In 
ascertaining  its  meaning  the  contract  of  a  surety  is  subject  to  the 
same  tests  as  is  every  other  contract.  It  is  to  receive  a  construc- 
tion which  will  give  force  to  the  obligation  of  each  of  the  parties 
at  the  moment  the  contract  takes  effect.^^  When  the  meaning  of 
the  language  has  been  thus  ascertained,  the  responsibility  of  the 
surety  is  not  to  be  extended  or  enlarged  by  implication  or  con- 
struction, but  is  strictissimi  juris}^ 


10.  United  States. — United  States 
Fidelity  &  Guaranty  Co.  v.  Board  of 
Commissioners  of  Woodson  County, 
145  Fed.  144,  76  C.  C.  A.  114. 

California. — Sather  Banking  Co.  v. 
Briggs  Co.,  138  Cal.  724,  72  Pac. 
352. 

Colorado. — Covey  v.  Schiesswohl, 
50  Colo.  68,  114  Pac.  292. 

District  of  Columbia.  —  United 
States  V.  Maloney,  4  App.  D.  C.  505. 

Illinois. — Ramsay's  Estate  v.  Peo- 
ple, 97  111.  App.  203,  affirmed  197  111. 
572,  64  N.  E.  549;  Shrefler  v.  Nadel- 
hoffer,  133  111.  536,  25  N.  E.  630; 
Ewen  V.  Wilbor,  90  111.  App.  132,  af- 
firmed 208  111.  492,  70  N.  E.  575. 

Indiana. — Weir  Plow  Co.  v.  Walms- 
ley,  110  Ind.  242,  11  N.  E.  232. 

Maryland. — Aetna  Indemnity  Co. 
V.  Waters,  110  Md.  673,  73  Atl.  712. 

Michigan. — Commissioner  of  Bank- 
ing V.  Chelsea  Savings  Bank,  161 
Mich.  691,  125  N.  W.  424,  aff'd  on  re- 
hearing 161  Mich.  704,  127  N.  W. 
351;  Locke  v.  McVean,  33  Mich.  473. 

Missouri. — Calhoun  v.  Gray,  150 
Mo.  App.  591,  131  S.  W.  478;  Fair- 
bank   Co.   V.   American    Bonding   & 


Trust  Co.,  97  Mo.  App.  205,  70  S.  W. 
1096. 

Nebraska, — Griswold  v.  Hazel,  62 
Neb.  888,  87  N.  W.  1047. 

New  York.— People  v.  Backus,  117 
N.  Y.  196,  22  N.  E.  759;  Belloni  v. 
Freeborn,  63  N.  Y.  383;  Gamble  v. 
Cuneo,  21  App.  Div.  413,  47  N.  Y. 
Supp.  548,  affirmed  162  N.  Y.  634, 
57  N.  E.  1110. 

North  Dakota. — Northern  Light 
Lodge  V.  Kennedy,  7  N.  D.  146,  73  N. 
W.  524. 

Texas. — State  v.  Evans,  32  Tex. 
200. 

Utah. — Coughran  v.  Bigelow,  9 
Utah  260,  34  Pac.  51. 

Virginia,— Kirschbaum  v.  Blair,  98 
Va.  35,  34  S.  E.  895. 

The  test  of  liability  is  the  intent 
of  the  parties  as  indicated  by  their 
agreement.  Citizens'  Nat.  Bank  v. 
Burch,  145  N.  C.  316,  59  S.  E.  71. 

11.  Hurlburt  v.  Kephart,  50  Colo. 
358,  115  Pac.  521,  citing  Ulster 
County  Savings  Institution  v.  Young, 
161  N.  Y.  23,  55  N.  E.  483. 

12.  United  States.— United  States 
Fidelity  &  Guaranty  Co.  v.  Board  of 


s  ^^ 


Suretyship  and  Guaranty. 


80 


But  while  a  surety  is  not  liable  beyond  the  strict  terms  of  his 
contract  which  may  not  be  extended  by  implication  or  construc- 
tion yet,  on  the  other  hand,  it  should  not  be  reduced  or  destroyed 
thereby,  but  should  be  given  a  rational  construction  which,  while 


Com'rs    of    Woodson     County,     145 
Fed.  144,  76  C.  C.  A.   114. 

Arkansas. — Miller  v.  Friedheim,  82 
Ark.  592,  102  S.  W.  372. 

California. — Sather  Banking  Co.  v. 
Briggs  Co.,  138  Cal.  724,  72  Pac.  352. 

Illinois. — Phoenix  Manufacturing 
Co.  V.  Bogardus,  231  111.  528,  83  N.  E. 
284;  Pfirshing  v.  Peterson,  98  111. 
App.  70. 

Indiana. — Barker  v.  McClelland 
(Ind.  App.  1912),  98  N.  E.  300;  Salena 
V.  McClintock,  16  Ind.  App.  656,  46 
N.  E.  39,  59  Am.  St.  Rep.  330. 

Kentucky. — Graziani  v.  Common- 
wealth, 30  Ky.  Law  Rep.  119,  97  S. 
W.  409. 

Michigan. — Bishop  v.  Freeman,  42 
Mich.  533,  4  N.  W.  290. 

Missouri. — State  ex  rel.  Bell  v. 
Yates  (Mo.  1910),  132  S.  W.  672; 
Moore  v.  Title  Guaranty  &  Trust  Co., 
151  Mo.  App.  256,  131  S.  W.  477;  Eau 
Claire-St.  Louis  Lumber  Co.  v. 
Banks,  136  Mo.  App.  44,  117  S.  W. 
611;  Gray  v.  Davis,  89  Mo.  App.  450. 

Nebraska. — Hopewell  v.  McGrew, 
50  Neb.  789,  70  N.  W.  397. 

New  York. — People  v.  Backus,  117 
N.  Y.  196,  22  N.  E.  759;  Peabody  v. 
Richard  Realty  Co.,  69  Misc.  R.  582, 
125  N.  Y.  Supp.  349. 

Ohio. — American  Surety  Co.  v. 
Boyle,  65  Ohio  St.  486,  63  N.  E.  73. 

Virginia. — Kirschbaum  v.  Blair,  98 
Va.  35,  34  S.  E.  895. 

Washington. — Title  Guaranty  & 
Trust  Co.  V.  Murphy,  52  Wash.  190, 
100  Pac.  315. 

"  The  law  is  well  settled  that  the 
undertaking  of  a  surety  is  to  be 
strictly   construed  and  his   liability 


not  to  be  extended  by  construction. 
The  liability  of  guarantors  is  gov- 
erned by  the  same  rules."  Phoenix 
Manufacturing  Co.  v.  Bogardus,  231 
111.  528,  83  N.  E.  284. 

Bule  of  strictissimi  juris  relaxed 
in  case  of  paid  sureties. 

United  States. — United  States  v. 
United  States  Fidelity  &  Guaranty 
Co.  (U.  S.  C.  C),  178  Fed.  721. 

Connecticut. — City  of  New  Haven 
V.  Eastern  Paving  Brick  Co.,  78 
Conn.  789,  63  Atl.  517. 

Missouri. — Kansas  City  v.  David- 
son, 154  Mo.  App.  269,  133  S.  W.  365; 
Moore  v.  Title  Guaranty  &  Trust  Co. 
of  Scranton,  151  Mo.  App.  256,  131  S. 
W.  477;  City  of  Richmond  v.  Byrne, 
146  Mo.  App.  481,  125  S.  W.  810. 

New  York. — Peabody  v.  Richard 
Realty  Co.,  69  Misc.  R.  (N.  Y.)  582, 
125  N.  Y.  Supp.  349. 

South  Carolina. — Walker  v.  Holtz- 
claw,  57  S.  C.  459,  35  S.  E.  754. 

Washington.— Title  Guaranty  & 
Trust  Co.  v.  Murphy,  52  Wash.  190, 
100  Pac.  315. 

See,  also,  §§  438  et  seq.  herein,  aa 
to  rule  in  case  of  surety  companies. 

Ambiguities.  The  general  rule  is 
said  to  be  that  uncertainties  and  am- 
biguities should  be  resolved  in  favor 
of  the  surety.  American  Surety  Co. 
of  New  York  v.  Koen,  49  Tex.  Civ. 
App.  98,  107  S.  W.  938. 

In  a  case  in  Missouri,  however,  it 
is  decided  that  where  a  contract  is 
susceptible  of  two  constructions,  the 
one  most  favorable  to  the  secured 
party  should  be  adopted,  if  consist- 
ent with  the  object  for  which  the 
bond  is  given.     Chicago  Crayon  Co, 


81  Scope  of  Surety  Conteact.         §  67a 

carefully  restricting  his  liability  to  that  which  he  agreed  to  un- 
dertake does  not  fail  to  hold  him  to  that  liability,  which,  by  the 
plain  terms  of  his  agreement,  he  has  promised  to  assume/^ 

The  surety  is  bound  by  the  contract  which  he  makes,  and  not 
by  some  contract  which  he  did  not  make,  even  though  the  latter 
may  be  more  favorable  to  him  than  the  former."  Thus,  where 
the  debt  is  paid  in  installments,  if  any  of  the  installments  is  paid 
in  advance,  it  is  held,  the  surety  is  released/^  And  new  terms 
cannot  be  added  to  the  contract  by  reading  the  instrument  in  con- 
nection with  a  statute.^®  He  has  the  right  to  stand  on  the  very 
terms  of  the  contract."  And  where  the  condition  of  the  bond  or 
contract  is  plainly  set  forth  it  cannot  be  controlled  by  any  recital 
not  plainly  inconsistent  therewith/* 

§  67a.     Where   Bond    Makes   a   Contract   a   Part   Thereof. — 

Where  a  bond  refers  to  a  contract  and  makes  it  a  part  thereof, 
both  are  to  be  construed  as  one  instrument. ^^  So  where  a  contrac- 
tor's bond  is  executed  with  express  reference  to  the  contract, 
plans  and  specifications  it  is  decided  all  three  instruments  must 
be  construed  together,  and  the  obligations  of  the  bond  must  be 

T   McNamara,  136  Mo.  App.  460,  118  16.  General    Steam    Nav.    Co.    v. 

S.  W.  118.  Roltz,  6  C.  B.  (N.  S.)  550;  Greenville 

And  where  a  bond,  is  prepared  by  City  Council  v.  Ormand,  51  S.  C. 
the  surety  the  rule  prevails  that  a  121,  28  S.  E.  147;  Welch  v.  Hub- 
construction  moro  favorable  to  the  schmitt  Building  &  Woodworking 
obligee  should  be  given  in  case  of  Co.,  61  N.  J.  L.  57,  38  Atl.  824. 
ambiguities.  Beech  Grove  Improve-  17.  Warden  v.  Ryan,  37  Mo.  App. 
ment  Co.  v.  Title  Guaranty  &  Surety  466;  Judah  v.  Zimmerman,  22  Ind. 
Co.    (Ind.  App.   1912),  98  N.  E.  373.  388;    Johnson   v.  May,  76   Ind.   293; 

See,  also.  Small  Co.  v.  Claxton,  1  Mayhew  v.  Boyd,  5  Md.  102;  Ryan  v. 

Ga.  App.  83,  57  S.  E.  977.  Trustees,  14  111.  20. 

13.  American  Bonding  Co.  v.  18.  Australian  Joint  Stock  Bank  v. 
Pueblo  Inv.  Co.,  150  Fed.  17,  80  C.  C.  Bailey   (1899),  App.  Cas.  396. 

A.  97,  per  Sanborn,  J.  19.  Searles  v.  City  of  Flora,  225  111. 

14.  Jackson  v.  Patrick,  10  S.  C.  167,  80  N.  E.  98,  rev'g  127  111.  App. 
197;  General  Steam  Nav.  Co.  v.  Roltz,  165;  Zimmerman  v.  Chelsea  Savings 
€  C.  B.  (N.  S.)  550;  Calvert  v.  Dock  Bank,  121  Mich.  691,  125  N.  W.  424, 
Co.,  2  Keen  638;  City  Council  of  affirmed  on  rehearing  161  Mich.  704, 
Greenville  v.  Ormond,  51  S.  C.  121,  127  N.  W.  351. 

28  S.  E.  147.  As  to  building  contracts,  see  §  112 

15.  Howard  County  Com'rs  v.  Hill,    herein. 
S8  Md.  Ill,  41  Atl.  61. 

6 


§  67a  Surj':tyship  and  Guaeanty.  82" 

determined  in  connection  with  the  terms  and  conditions  of  the 
contract,  plans  and  specifications.^" 

The  conditions  of  a  bond  being  for  the  performance  of  the 
agreements  set  forth  in  a  building  contract,  and  the  two  instru- 
ments having  been  executed  at  the  same  time,  and  referring  each 
to  the  other,  the  sureties  upon  such  bond  are  bound  with  the  con- 
tractor as  to  the  agreements  and  undertakings  set  forth  in  the 
contract,  though  such  contract  was  not  signed  by  the  sureties.^' 

So  when  a  surety  company,  by  the  express  terms  of  its  bond, 
made  a  contract  with  a  city  as  part  of  the  bond,  it  was  decided 
that  it  could  not  be  heard  to  say  that  the  city  had  no  power  to 
enter  into  the  contract  or  did  not  make  the  contract  in  the  re- 
quired manner.^^  And  where  a  bond  recites  that  another  bond 
is  annexed  thereto  and  made  a  part  thereof  if  the  surety  fails  to 
read  what  is  in  such  bonds  before  signing,  he  cannot  claim  that 
he  was  mistaken  as  to  their  terms.^^  And  where  two  of  several 
notes  contain  a  clause  that  they,  with  others,  are  secured  by  a 
mortgage  given  by  the  mortgagor  to  the  creditor,  and  are  signed 
by  a  third  party  as  surety  for  the  debtor,  such  surety  will  be 
held,  in  the  absence  of  circumstances  showing  the  contrary,  to 
have  notice  of  the  provisions  of  the  mortgage  respecting  the  ap- 
plication of  payments,  and  to  have  contracted  with  reference 
thereto.^* 

rt  is  not  essential  that  a  bond  given  to  secure  the  performance 
of  a  contract  mentioned  therein  should  recite  a  copy  of  the  con- 
tract or  otherwise  identify  it,  the  identity  of  the  contract  broken 
with  the  one  mentioned  in  the  bond  being  the  proper  subject  of 
proof  at  the  trial.^^ 


20.  McArthur  v.  McGilvray,  1  Ga.  21.  Bell    v.    Campbell    (Tex.    Civ. 
App.  643,  57  S.  E.  1058.                             ^App.  1912),  143  S.  W.  953. 

As    to    bnilding    and    contractors'  22.  City  of  Madison   v.  American 

bonds,  and  the  contract  being  con-  Sanitary  Engineering  Co.,   118  Wis. 

strued  together,  see,  also,  Beckley  v.  480,  95  N.  W.  1097. 

Miller,  96  Ark.  379,  131  S.  W.  876;  23.  Stiewell    v.    American    Surety 

Harris  v.  Taylor,  150  Mo.  App.  291,  Co.,  70  Ark.  512,  68  S.  W.  1021. 

129  S.  W.  995;   Higgins  v.  Drucker,  24.  Advance      Thresher      Co.      v. 

22  Ohio  Cir.  Ct.  R.  112,  12  Ohio  C.  D.  Hogan,  74  Ohio  St.  307,  78  N.  E.  436. 

220.  25.  People    v.    Carroll,    151    Mich. 

As  to  building  contracts,  see  §  112  233,  115  N.  W.  42. 
herein. 


83  Scope  of  Surety  Conteact.  §§  67b,  68,  69 

§  67b.  Statutory  Bonds — Estoppel. — Where  a  bond  follows 
the  statute  it  has  been  decided  that  the  fact  that  it  does  not  fol- 
low the  letter  of  the  act  creating  the  fund  intended  to  be  secured 
by  it  is  immaterial,  where  the  statute  provides  that  the  bond  is 
"  binding  on  the  parties  thereto  according  to  its  terms."  ^^ 

Sureties  also  are  presumed  to  know  the  form  and  terms  of 
official  bonds  required  by  statute  for  they  are  presumed  to  know 
the  law.  Where  such  a  bond  is  signed  and  its  execution  was  not 
induced  by  fraud  and  the  sureties  if  they  read  it  know  the  period 
for  which  it  binds  them,  if  they  fail  to  read  it  that  is  their  fault 
and  as  against  others  who  have  a  right  to  rely  upon  it  and  in 
reliance  upon  it  disadvantageously  change  their  position,  the  sure- 
ties are  estopped  from  denying  that  they  knew  the  terms  of  the 
bond." 

§  68.  Construction  of  Contract — In  Equity. — Courts  of  equity, 
as  well  as  courts  of  law,  interpret  contracts  of  sureties  with  con- 
siderable strictness  in  favor  of  the  sureties.'^  But  if  the  liability 
cannot  be  enforced  against  the  surety  at  law  by  reason  of  any 
fraud,  accident  or  mistake,  equity  will  enforce  the  contract  ac- 
cording to  the  obvious  intention  of  the  parties.^^ 

So  where  the  contract  does  not  express  the  intention  of  the  par- 
ties, to  the  injury  of  the  obligee,  and  that  is  clearly  made  to  ap- 
pear, equity  will  reform  the  instrument  as  well  against  surety  as 
principal.^" 

§  69.  Liability  for  Past  Defaults  of  Principal. — Sureties  are 
not  responsible  for  prior  defaults  of  their  principal,  unless  they 
80  contract.^^  So  a  publisher's  bond  executed  under  a  statute 
providing  that  such  bond  must  be  executed  before  any  legal  adop- 
tion can  be  made  of  school  books  embraced  in  the  list  covered  by 

26.  United  States  Fidelity  &  Guar-  (Md.)  306;  Berg  v.  Radcliff,  6  Johns, 
anty  Co.  v.  Commonwealtli,  31  Ky.    Ch.  (N.  Y.)  302. 

Law  Rep.  1179,  104  S.  W.  1029.  30.  Olmsted  v.  Olmsted,  38  Conn. 

27.  Empire  State  Surety  Co.  v.  309;  United  States  v.  Cushman,  2 
Carroll  County  (U.  S.  C.  C.  A.  1912),    Sumner  (U.  S.  C.  C.)  434. 

194  Fed.  593.  81.  Arkansas.— United    States    Fi- 

28.  Miller  v.  Stewart,  9  Wheat.  (U.  delity  &  Guaranty  Co.  v,  Fultz,  76 
S.)  680,  6  L.  Ed.  189.  Ark.  410,  89  S.  W.  93. 

29.  Brooks  v.  Brooks,  12  Gill  &  J. 


(39 


SUEETYSHIP  AKD  GUABANTY. 


84: 


the  bond  provides  against  violations  of  its  conditions  as  to  the 
sale  of  books  after  their  adoption  and  which  do  not  occur  before  th« 
execution  of  the  bond  and  will  not  be  extended  by  implication 
or  inference  to  cover  liability  for  breach  of  contract  as  to  books 
adopted  before  the  bond  was  executed.''  But  the  guaranty  or 
suretyship  may  cover  a  note  given  for  a  pre-existing  debt.  Thus, 
where  a  contract  of  guaranty  provides  for  the  payment  of  all  notes 
discounted  by  a  bank  ''  from  the  date  "  thereof,  a  note  discounted 
by  the  bank  after  such  date  is  covered  by  the  guaranty,  although 
it  is  given  to  cancel  a  note  given  to  the  bank  before  the  contract 
was  made.^^  And  so  sureties  are  liable  for  money  paid  their  prin- 
cipal, though  he  misapplies  it  to  pay  prior  delinquencies  covered 
by  another  bond  with  other  sureties.'* 

And  a  contract  of  suretyship  may  act  retrospectively  where  the 
parties  so  agree,  because  then  it  is  the  contract  of  the  surety.^^ 


Colorado.— Rockford  Ins.  Co.  v. 
Rogers,  15  Colo.  App.  23,  60  Pac.  956. 
Illinois.— Bartlett  v.  Wheeler,  195 
111.  445,  63  N.  E.  169,  aff'g  96  111. 
App.  342;  Mystic  Workers  of  the 
World  V.  United  States  Fidelity  & 
Guaranty  Co.,  152  111.  App.  223;  Stern 
V.  People,  96  111.  475;  Abrams  v. 
Pomeroy,  13  111.  133. 

Indiana.— Rogers  v.  State,  99  Ind. 
218. 

Iowa.— Webster  Co.  v.  Hutchinson, 
60  Iowa  721,  9  N.  W.  901,  12  N.  W. 
534. 

Kansas.- McMullen  v.  Wingfield 
Building  &  Loan  Ass'n,  64  Kan.  298, 
67  Pac.  892,  91  Am.  St.  Rep.  236,  56 
L.  R.  A.  924. 

Massachusetts. — Rochester  v.  Ran- 
dall, IOF;  Mass.  295. 

Michigan.— Detroit  v.  Wehr,  29 
Mich.  24. 

Minnesota.— County  of  Pine  v.  Wil- 
lard,  39  Minn.  125,  39  N.  W.  71. 

Missouri. — State  v.  Jones,  89  Mo. 
470. 

Nebraska.— Van  Sickle  v.  Buffalo 
Co.,  13  Neb.  103,  13  N.  W.  19. 


New  York.— Kellum  v.  Clark,  97  N. 
Y.  390. 

PennsjiTania.  —  American  Dist. 
Tel.  Co.  V.  Lennig,  139  Pa.  St.  594, 
21  Atl.  162. 

Texas. — Newcomer  v.  State,  77 
Tex.  286,  13  S.  W.  1040. 

Virg^inia.  —  Crown  v.  Common- 
wealth, 84  Va.  282,  4  S.  E.  721. 

Wisconsin. — Wussow  v.  Hase,  10$ 
Wis.  382,  84  N.  W.  433. 

The  presumption  is  that  a  bond 
was  not  intended  to  cover  losses  oc- 
curring prior  to  its  execution,  though 
such  presumption  may  be  overcome. 
Tarentune  Realty  Co.  v.  McClure, 
230  Pa.  266,  79  Atl.  551. 

32.  Graziani  v.  Commonwealth,  30 
Ky.  Law  Rep.  119,  97  S.  W.  409. 

33.  Peoria  Savings,  Loan  &  Trust 
Co.  V.  Elder,  165  111.  55. 

34.  Gwynne  v.  Burnell,  7  CI.  &  P. 
572;  Inhabitants  v.  Bell,  9  Met.  490; 
County  of  Pine  v.  Willard,  39  Minn. 
125,  39  N.  W.  71. 

35.  Abrams  v.  Pomeroy,  13  111.  133; 
McMullen  v.  Wingfield  Building  & 
Loan  Ass'n,  64  Kan.  298,  67  Pac.  892. 


S5 


Scope  of  Surety  Contract, 


§  70 


§  70.  Liability  Limited  to  a  Fixed  Time. — A  surety  is  not  to 
be  held  beyond  the  precise  term  of  his  contract.  So  where  the 
principal  is  in  office  for  a  definite  period,  the  surety  is  only 
liable  for  his  faithful  performance  of  his  duties  during  that 
period.  If  the  bond  is  silent  as  to  the  length  of  the  term,  but 
the  statute  under  which  the  bond  is  given  fixes  the  term,  the 
statute  in  that  regard  will  be  regarded  as  the  period  of  the  con- 
tract with  the  surety.  In  such  case  the  sureties  do  not  contract 
for  their  principal's  discharge  of  obligations  which  he  might  as- 
sume or  duties  which  might  be  imposed  upon  him  after  he  leaves 
office.^' 


Where  the  terms  of  a  bond  clearly 
show  that  it  was  intended  to  be 
retrospective  as  well  as  prospective, 
Bureties  may  be  held  liable  for  de- 
faults occurring  before  the  execution 
of  such  bond.  McMullen  v.  Wing- 
field  Building  &  Loan  Ass'n,  64  Kan. 
298,  67  Pac.  892,  91  Am.  St.  Rep.  236. 
56  L.  R.  A.  924. 

36.  United  States  v.  Nicoll,  12 
Wheat.  (U.  S.)  505,  6  L.  Ed.  709; 
Bryan  v.  United  States,  1  Black  (U. 
S.)  140,  17  L.  Ed.  135;  People  v. 
Toomey,  122  111.  308,  13  N.  E.  521; 
Ulster  County  Sav.  Bank  v.  Ostran- 
der,  163  N.  Y.  430,  57  N.  E.  627; 
People  V.  Pennock,  60  N.  Y.  421;  Lord 
Arlington  v.  Merrick,  3  Saund.  403. 

It  is  familiar  law  that  in  cases 
■where  the  term  of  office  to  which  the 
principal  is  elected  or  appointed  is 
fixed  by  law  the  liability  of  his 
bondsmen  will  be  limited  to  the  cur- 
rent term,  unless  they  expressly 
agree  to  continue  liable  after  its  ex- 
piration. It  is  equally  well  settled 
that  where  the  bond  recites  the 
length  of  term  for  which  the  officer 
Is  elected  or  appointed,  the  liability 
of  the  bondsmen  is  presumed  to  bo 
limited  to  that  term  in  the  absence 
of  an  express  agreement  to  be  re- 
sponsible for  a  longer  term.  Wester- 
velt  v.  Mohenstecker,  76  Fed.  118,  22 


C.  C.  A.  93,  34  L.  R.  A.  477,  per  San- 
born, J. 

Provision  that  responsibility  shall 
cease  on  issuance  of  a  new  bond.  A 

provision  in  a  bond  "  That  the  com- 
pany, upon  the  execution  of  this 
bond,  shall  not  thereafter  be  respon- 
sible to  the  employer  under  any 
bond  previously  issued  to  the  em- 
ployer on  behalf  of  said  employee, 
and  upon  the  issuance  of  any  bond 
subsequent  hereto  upon  said  em- 
ployee in  favor  of  said  employer,  all 
responsibility  hereunder  shall  cease 
and  determine,  it  being  mutually  un- 
derstood that  it  is  the  intention  of 
this  provision  that  but  one  (the  last) 
bond  shall  be  in  force  at  one  time, 
unless  otherwise  stipulated  between 
the  employer  and  the  company,"  ig 
to  be  construed  as  meaning  that  it 
was  the  intention  to  terminate  all 
responsibility  upon  a  former  bond 
upon  the  issuance  of  a  new  one,  so 
that  there  should  be  but  one  bond  in 
force  at  the  same  time.  Such  pro- 
vision will  not  be  construed  as 
meaning  that  it  was  the  intent  to 
cancel  any  liability  already  incurred 
while  the  prior  bond  was  in  force. 
The  rule  of  liability  would  then  be 
the  same,  whether  the  first  bond  wag 
terminated  by  the  giving  of  the  sec- 
ond bond  or  for  any  other  reason. 


§  70 


SuilETYSIIIP    AND    GUARANTY. 


86 


If  the  term  of  office  is  prescribed  and  the  bond  is  conditioned 
without  express  limitation  as  to  period,  for  the  faithful  perform- 
ance of  the  principal's  duties,  and  nothing  else  appears  to  give 
it  a  wider  effect,  it  will  be  construed  as  intending  to  cover  acts 
oecurring  only  within  the  prescribed  term." 

The  general  rule  as  touching  the  extent  of  the  obligation  of 
the  surety  on  offi<;ial  bonds  is,  that  the  obligation  by  intendment 
will  bo  confined  to  the  official  term  about  the  commencement  or 
current  at  the  time  such  bond  comes  into  existence,  and  when  the 
office  is  annual  the  parties  to  the  bond  are  presumed,  by  law,  to 
bind  themselves  accordingly,  if  there  are  no  words  in  the  bond 
clearly  extending  it  to  a  future  term.^^ 

But  when  the  bond  provides  that  the  officer  is  to  be  chosen  an- 
nually and  holds  his  office  until  another  is  chosen  and  qualified 


The  provision   is  that  all  responsi- 
bility,  and  not  all  liability,  should 
cease  upon  the  issuance  of  the  sec- 
ond bond.     Hawley  v.  United  States 
Fidelity   &   Guaranty   Co.,    100   App. 
Div.   (N.  Y.)   12,  90  N.  T.  Supp.  893, 
affirmed  184  N.  Y.  549,  76  N.  E.  1096. 
Where  the  bond  of  an  officer  re- 
«cited  that  he  had  been  elected  for 
(the  year  beginning  January  1,  1885, 
sand  ending  December  31,  1885,  and 
Md  accepted  the  office,  and  it  was 
conditioned  that  if  he  should  faith- 
fully perform  the  duties  of  his  office 
"  during  said  year  "  the  bond  should 
be  void  and  of  no  effect,  but  other- 
wise should  remain  in  full  force  and 
effect,  and  the  officer  was  not  elected 
until  some  time  after  the  first  of  the 
year,  but  had  held  successive  terms 
and   been    continually   in   office  for 
several  years  before  and  after  1885, 
it   was   held   that   the   surety   made 
himself  responsible  for  the  defaults 
of  the  entire  year  of  1885.    McMullen 
V.  Wingfield  Building  &  Loan  Ass'n, 
64  Kan.  298,  67  Pac.  892,  91  Am.  St. 
Rep.  236.  56  L.  R.  A.  924. 
37.  North    St.    Louis    Building    & 


Loan  Ass'n  v.  Fidelity  &  Deposit  Co. 
of  Maryland,  169  Mo.  507,  69  S.  W. 
1044. 

38.  Connecticut.  —  Welch  v.  Sey- 
mour, 28  Conn.  387. 

Delaware. — May  v  Horn,  2  Harr. 
190. 

District  of  Columbia.  —  United 
States  V.  West,  8  App.  D.  C.  59. 

Iowa. — Ida  County  Savings  Bank 
V.  Seidensticker,  128  Iowa  54,  102  N.. 
W.  821,  111  Am.  St.  Rep.  189. 

Massachusetts. — Chelmsford  Co.  v. 
Demarest,  7  Gray  1. 

Missouri — North  St.  Louis  Build- 
ing &  Loan  Ass'n  v.  Fidelity  &  De- 
posit Co.  of  Maryland,  169  Mo.  507, 
69  S.  W.  1044. 

New  Hampsliire. — Dover  v.  Twom- 
bly,  42  N.  H.  59. 

New  Jersey.— Mayor  v.  Crowell,  40 
N.  J.  L.  207. 

NortL  Carolina. — Blades  v.  Dewey, 
136  N.  C.  176,  48  S.  E.  627,  103  Am. 
St.  Rep.  924. 

Vermont.— First  National  Bank  v. 
Brigg's  Assignees,  69  Vt.  12,  37  AtL 
231,  37  L.  R.  A.  845,  60  Am.  St.  Rep. 
922. 


87  Scope  of  Surety  Contkact,  §  T1 

in  his  stead,  the  sureties  are  bound  for  the  year  for  whieh  he  was 
chosen,  and  for  such  further  time  as  is  reasonably  sufficient  for 
the  election  and  qualification  of  his  successor,  but  not  longer.^ 
When  a  bond  is  conditioned  for  the  faithful  performance  of  the 
principal's  duties  "  during  his  continuance  in  office,"  without 
specifying  the  length  of  time,  the  surety  is  liable  for  one  year 
only,  the  term  of  the  principal  being  limited  to  that  time.***  And 
in  general  a  surety  cannot  be  held  on  an  official  bond  for  a  longer 
period  than  that  limited  by  his  undertaking." 

§  71.  Time  Limited  to  a  Subsequent  Period. — To  enlarge  the 
responsibility  of  sureties  in  a  bond  or  in  any  other  contract,  there 
must  be  words  in  the  condition  extending  the  time  beyond  the 
fixed  term  of  office.  It  is  not  enough  that  the  recitals  should  be 
^'  so  long  as  he  continue  in  office,"  or  '^  until  a  successor  is  ap- 
pointed." If  the  office  is  annual  or  limited  the  surety  will  not 
be  prejudiced  by  a  failure  to  bind  according  to  the  requirements 
of  the  law  or  rule  which  regulates  such  appointment.  His  inten- 
tion to  assume  a  further  and  continued  liability  must  be  found 

89.  Chelmsford  Co.  v.  Demarest,  7  41.  United    States. — Westervelt    v. 

Gray  (Mass.)  1.  Mohrensticker,  76  Fed.  118,  22  C.  C. 

40.  Kitou  V.  Julian,  4  El.  &  B.  854.  A.  93,  34  L.  R.  A.  477. 

During    his    continuance    and    so  Illinois.  —  Roper     v.     Sangamon 

long  as  he  shall  hold  office.    An  of-  Lodge,  91  111.  518. 

fleer's     bond     conditioned     for     the  Indiana. — Urmston  v.  State,  73  Ind. 

faithful  performance  by  the  principal  175;  Mullikin  v.  State,  7  Blackf.  77. 

of  the  duties  of  his  office  "  during  Iowa. — Myers  v.  Farmer,  52  Iowa 

his  continuance  in,  and  so  long  as  he  20,  2  N.  W.  572. 

shall  hold  said  office  by  election,  re-  Kansas. — Riddel  v.  School  Dist.,  15 

election  or  otherwise,"  and  for  his  Kan.  168. 

delivering  up  all  funds  in  his  posses-  Maine. — Norridgewock  v.  Hale,  80 

slon  "  at  the  expiration  of  his  said  Me.  362,  14  Atl.  94^.. 

office,  or  whenever  he  may  cease  to  Minnesota. — Scott  Co.  v.  Ring,  29 

hold  the  same,"  is  a  continuing  bond,  Minn.  398,  13  N.  W.  181. 

and  is  valid  and  enforceable  accord-  MissourL — Savings  Bank  v.  Hunt, 

ing  to  its  terms,  though  the  lodge  72  Mo.  597. 

by-laws  provide  for  annual  election  New  York. — Kellum  v.  Clark,  97  N. 

to  the  office  in  question.    The  bond,  Y.  390. 

however,   ceases   to   be   in   force   if  Pennsylvania. — Black  v.  Oblender, 

there  is  an  interruption  in  the  prin-  135  Pa.  St.  526,  19  Atl.  945. 

cipal's   holding   the   office.     Coombs  Texas.  —  Barry     v.     Screwmen's 

V.  Harford,  99  Me.  426,  59  Atl.  529.  Ass'u,  67  Tex.  250,  3  S.  W.  261. 


§  72 


Suretyship  and  Guaranty. 


88 


in  the  words  of  the  bond.  It  is  not  a  matter  of  inference,  but  of 
exposition.'^ 

If  the  bond  is  drawn  so  as  to  cover  subsequent  periods,  the 
sureties  are  bound.^^  Thus,  a  surety's  liability  is  extended  by 
the  following  language:  ''During  the  time  he  shall  continue  in 
the  said  office,  whether  of  the  present  term  for  which  he  has  been 
duly  elected,  or  of  any  succeeding  term  to  or  for  which  he  may 
be  elected.^'* 

And  a  bank  cashier's  bond  conditioned  for  the  faithful  dis- 
charge of  his  duties  "  for  and  during  all  the  time  he  shall  hold 
the  said  office  of  cashier,"  was  held  to  bind  the  sureties  thereon 
for  all  of  such  period^  though  it  appeared  that  the  cashier  was 
elected  or  appointed  annually.^^ 

A  bond  for  the  fidelity  of  one  who  holds  his  office  during  the 
pleasure  of  the  appointing  power  covers  all  delinquencies  until  he 
resigns  or  is  removed.*® 


§  72.  Employment  or  Condition  Changed  by  Employer  or  by 
the  Legislature. — If  by  act  of  the  parties  or  by  act  of  the  legis- 
lature, the  nature  of  the  office  is  so  changed  that  the  duties  are 
materially  altered  so  as  to  affect  the  liability  of  the  sureties,  their 


42.  Angero  v.  Keen,  1  Mees.  &  W. 
390;  Oswald  v.  Berwick,  1  El.  &  B. 
295,  3  EI.  &  B.  653,  5  H.  L.  Cas.  856. 

43.  Iowa. — Dist.  Tp.  of  Fox  v.  Mc- 
Cord,  54  Iowa  346,  6  N.  W.  536. 

Massachusetts. — Dedham  Bank  v. 
Chickering,  3  Pick.  335. 

MissourL — Lang  v.  Seay,  72  Mo. 
648. 

Pennsylvania. — Daley  v.  Common- 
wealth, 75  Pa.  St.  331. 

Virginia. — Jacobs  v.  Hill,  2  Leigh 
393. 

Wisconsin. — Board  of  Supervisors 
of  Milwaukee  Co.  v.  Pabst,  70  Wis. 
352,  35  N.  W.  337. 

England. — Mayor  v.  Wright,  16  Q. 
B.  63. 

44.  People's  Bldg.  Ass'n  v.  Wroth, 
43  N.  J.  L.  70. 

4&.  Westervelt   v.   Mohrenstecker, 


76  Fed.  118,  22  C.  C  A.  93,  34  L.  R.  A. 
477. 

See  Ulster  County  Savings  Inst.  v. 
Young,  161  N.  Y.  23,  55  N.  E.  481,  af- 
firming 15  App.  Div.  181,  44  N.  Y. 
Supp.  493,  wherein  a  similar  pro- 
vision in  a  bond  of  an  assistant 
treasurer  is  so  construed. 

Compare  Ulster  County  Savings 
Inst.  V.  Ostrander,  163  N.  Y.  430,  57 
N.  E.  627,  affirming  15  App.  Div.  173, 
44  N.  Y.  Supp.  181,  where  the  bond 
of  a  bank  treasurer  was  conditioned 
"  during  his  continuance  in  office." 
In  this  case  the  preceding  cas© 
which  we  have  cited  is  referred  to 
and  distinguished. 

46.  Westervelt  v.  Mohrenstecker, 
76  Fed.  118,  22  C.  C.  A.  93,  34  L.  R. 
A.  477. 


86l  Scope  of  Surety  Contract.  §  72 

responsibility  is  ended.  If  the  nature  and  the  functions  of  the 
office  or  employment  are  changed,  then  it  is  not  the  same  office 
within  the  meaning  of  the  bond.^^  Hence,  if  the  nature  of  the 
employment  is  so  changed  by  the  act  of  the  employer  that  the 
risk  of  the  surety  is  materially  altered,  the  surety's  liability 
ceases.'**  So  the  increase  of  the  principal's  salary  on  re-employ- 
ment relieves  the  surety  for  all  subsequent  defaults.^^  And  so, 
where  a  bank  increases  its  capital  stock  and  it  is  paid  in,  then 
the  surety  on  the  bond  of  the  cas'hier  is  no  longer  liable  for  subse- 
quent defaults  of  his  principal.^*^  Likewise  the  sureties  on  a 
cashier's  bond  of  an  unincorporated  bank  are  released  from  lia- 

47.  Alabama. — Singer  Mfg.  Co.  v.  A   surety  on   a  bond  of  a  book- 

Beyette,  74  Ark.  600,  86  S.  W.  673,  keeper    and    collector    is    released 

109  Am.  St.  Rep.  104.  where  the  employee's  duties  are  in- 

Kansas. — Singer  Mfg.  Co.  v.  Arm-  creased  so  that  he  is  required  to  per- 

strong,  7  Kan.  App.  314,  54  Pac.  571.  form  the  duties  of  cashier,  and  as 

Massachusetts. — Boston  Hat  Man-  such  has  control  of  all  the  cash  of 

ufactory     v.     Messinger,     2     Pick,  the  business.     Kellogg  v.   Scott,  58 

(Mass.)  223.  N.  J.  Eg.  344,  44  Atl.  190,  affirmed  62 

Minnesota.— Fidelity    Mutual    Life  N.  J.  Eq.  811,  48  Atl.  1117. 

Ass'n  V.  Dewey,  83  Minn.  389,  86  N.  Sureties   on   administrator's   bond 

W.  423,  5t  L.  R.  A.  945.  released  by  act  of  legislature.    State 

Missouri— State  v.  Holman,  96  Mo.  v.  Holman,  96  Mo.  App.  193,  68  S.  W. 

App.  193.  68  S.  W.  965.  965. 

New  Jersey. — Kellogg  v.  Scott,  58  Sureties  on  appeal  bond  released 

N.   J.   Eq.  344,  44  Atl.  190,  affirmed  by   act  of   legislature.     Schuster  v. 

Kellogg  V.  American  Ins.  Co.,  62  N.  Weissen,  114  Mo.  158. 

J.  Eq.   811,   48  Atl.   1117;    Manufac-  Bond  may  by  its  terms  permit  of 

turers'  Bank  v.  Dickerson,  41  N.  J.  L.  such    change.      Singer   Mfg.    Co.    v. 

448.  Reynolds,  168  Mass.  588,  47  N.  E.  438, 

New     York.  —  Tradesmen's    Nat.  60  Am.  St.  Rep.  417;  Travelers  Ins. 

Bank  v.  National  Surety  Co.,  54  App.  Co.  v.   Stiles,   82  App.   Div.    (N.   Y.) 

Div.  631,  66  N.  Y.  Supp.  1146,  affirmed  441,  81  N.  Y.  Supp.  664. 

169  N.  Y.  563,  62  N.  E.  670.  48.  Miller  v.  Stewart,  9  Wheat.  (U. 

Tennessee.— Mumford  v.  Memphis  S.)    680,    6    L.   Ed.    189;    First   Nat. 

&  Charleston  R.  R.  Co.,  2  Lea  398.  Bank  of  Baltimore  v.  Gerke,  68  Md. 

England.— Pybus  v.  Gibb,  6  El.  &  449,  13  Atl.  355. 

Bl.  902.  See  cases  cited  in  preceding  note. 

Waiver   by    employee    of   duty   to  49.  Strawbridge  v.  Railroad  Co.,  14 

furnish   report   at   stated   intervals,  Md.  360. 

held  to  release  surety.    Singer  Mfg.  60.  Grocers'  Bank  v.  Kingman,  16 

Co.  V.  Boyette,  74  Ark.  600,  86  S.  W.  Gray  473.    Compare  Bank  v.  Wollas- 

673,  109  Am.  St.  Rep.  104;   Fidelity  ton,  3  Harr.  (Del.)  90;  Morris  Canal 

Mutual  Life  Ass'n  V.  Dewey,  83  Minn.  Co.  v.  Van  Vorst,  21   N.   J.   L.   100; 

389,  80  N.  W.  423,  54  L.  R.  A.  945.  Lionberger  v.  Kieger,  88  Mo.  160. 


§  73  Suretyship  and  Guaeanty.  90 

bility  if  the  company  becomes  incorporated.^^  And  the  appoint- 
ment of  a  bank  cashier  for  an  indefinite  term  and  at  the  pleasure 
of  the  directors  is  terminated  by  his  new  appointment  for  a  defi- 
nite period  although  there  was  no  interruption  in  the  service; 
and  the  sureties  on  his  official  bond  under  the  original  appoint- 
ment are  not  liable  for  his  defalcations  occurring  during  the  new 
term,  in  the  absence  of  language  in  the  bond  itself  giving  it 
effect  beyond  such  change  in  the  term  of  appointments.^^ 

It  has  been  held  that  extending  the  charter  of  a  bank  by  the 
legislature  ends  the  surety's  liability  on  the  bo.nd  of  the  cashier, 
though  his  duties  are  identical  with  those  before  extension.^^  But 
such  doctrine  is  doubtful,^*  and  cannot  be  applied  where  the  stat- 
ute provided  for  such  extension  or  other  change  when  the  surety 
sigTied.^^ 

If  the  nature  of  the  principal's  duty  is  unchanged,  and  no  new 
or  different  duty  is  imposed  upon  him  by  the  alteration  in  the 
regulation  of  his  employer,  the  surety  is  still  liable.  Thus,  a 
railroad  company  may  raise  a  station  to  one  of  first-class,  and 
this  will  not  release  the  surety  on  the  station  agent's  bond,  where 
the  agent  has  the  identical  duties  as  before  the  change  of  the  sta- 
tion's re-classification.^^ 

§  73.     Sureties  in  Legal  Proceedings — Order  of  Liability. — As 

between  different  sets  of  sureties  who  undertake  to  secure  the 
same  debt,  although  in  different  stages  of  legal  proceedings,  the 
primary  liability  rests  upon  the  latter  set."  Thus,  a  surety  in 
an  injunction  bond  enjoining  a  judgment  against  the  acceptor  of 
a  bill  of  exchange,  has  no  right  to  call  upon  the  indorsers  of  the 
bill  for  indemnity  for  such  payment;  they  are  not  his  principals 

51.  Besinger  v.  Wren,  100  Pa.  St.  22  N.  E.  759;  National  Bank  v. 
500.  Phelps,  97  N.  Y.  44. 

52.  Wapello  State  Savings  Bank  v.  56.  Strawbridge  v.  Railroad  Co.,  14 
Colton,    133    Iowa    147,    110    N.    W.  Md.  360. 

450.  57.  Brandenburg   v.   Flynn,    12    B. 

53.  Thompson  v.  Young,  2  Ohio  Mon.  (Ky.)  397;  Culliford  v.  Walser, 
334;  Union  Bank  v.  Ridgely,  1  H.  &  158  N.  Y.  65,  52  N.  E.  648;  Hinckley 
G.  324;  Bank  v.  Barrington,  2  Pa.  v.  Kreitz,  58  N.  Y.  583;  Burns  v. 
27;  Brown  v.  Lattimore,  17  Cal.  93.  Bank,  1   Pa.  St.  395;    McCormick  v. 

54.  Exeter  Bank  v.  Rogers,  7  N.  H.  Irwin,  35  Pa.  St.  Ill;  Pott  v.  Nathan, 
21.  1  W.  &  S.  (Pa.)  155;  Parsons  v.  Brid- 

55.  People  v.  Backus,  117  N.  Y.  196,  dock,  2  Vern.  608. 


91 


Scope  of  Surety  Conte^vct. 


§  u 


or  co-sureties,  nor  has  he  any  right  to  be  substituted  to  the  right 
which  the  payee  once  had  against  indorsers  for  payment  of  the 
bill.'' 

Bail  are  sureties  and  entitled  to  the  benefit  of  the  general  prin- 
ciple applicable  to  the  relation  which  they  bear  toward  their  prin- 
cipal and  his  creditor  as  well  as  toward  other  sets  of  sureties.'^ 
In  other  words,  bail  have  the  same  rights  as  other  sureties  con- 
sistent with  their  duties. 


§  74.  Only  Liable  for  Penalty  of  the  Bond. — The  general  prin- 
ciple is  that  in  suits  on  penal  bonds  with  collateral  limitations, 
the  surety  is  liable  only  for  the  penalty.®^ 

The  undertaking  of  the  surety  is  essentially  a  pledge  to  make 
good  the  misfeasance  or  non-feasance  of  his  principal  to  the 
amount   co-extensive  with  the  penalty  of  the  bond.®^     But  the 


58.  Bohannon  v.  Combs,  12  B.  Mon. 
(Ky.)  563. 

59.  Culliford  v.  Walser,  158  N.  Y. 
65.  32  N.  E.  648. 

See  §  213  et  seq. 

60.  United  States.  —  Farrar  v. 
United  States,  5  Pet.  373,  8  L.  Ed. 
159;  Loughlin  v.  American  Surety 
Co.,  114  Fed.  627,  51  C.  C.  A.  247. 

Connecticut. — City  of  New  Haven 
V.  Eastern  Paving  Brick  Co.,  78  Conn. 
689,  63  Atl.  517. 

Georgia. — Westbrook  v.  Moore,  59 
Ga.  204. 

Indiana. — Greater  v.  DeWolf,  112 
Ind.  1,  13  N.  E.  111. 

lOTva. — Getchell  &  Martin  Lumber 
&  Mfg.  Co.  V.  Peterson,  124  Iowa  599, 
100  N.  W.  1123;  Stull  v.  Lee,  70  Iowa 
31,  30  N.  W.  6. 

Louisiana. — Mercy  v.  Praeger,  34 
La.  Ann.  54. 

Michigan. — Eraser  v.  Little,  13 
Mich.  195. 

Missouri. — North  St.  Louis  Build- 
ing &  Lumber  Ass'n  v.  Obert,  169  Mo. 
507,  69  S.  W.  1044;  Showlles  v.  Free- 
man, 81  Mo.  540. 


New  Jersey. — Turnson  v.  Cramer, 
5  N.  J.  L.  574. 

New  York.— Wood  v.  Tish,  63  N. 
Y.  245;  Westcott  v.  Fidelity  &  De- 
posit Co.  of  Maryland,  87  App.  Div. 
497,  84  N.  Y.  Supp.  371;  Fairlie  v. 
Lawson,  5  Cow.  424;  Clark  v.  Bush, 
3  Cow.  151. 

North  Carolina.  —  Bernhardt  v. 
Dutton,  146  N.  C.  206,  59  S.  E.  651; 
New  Home  Sewing  Mach.  Co.  v. 
Seago,  128  N.  C.  158,  38  S.  E.  805. 

Pennsylvania.— Delo  v.  Banks,  101 
Pa.  St.  458;  Commonwealth  v.  For- 
ney, 3  Watts  &  G.  353. 

A  surety  cannot,  either  through 
favoritism  or  neglect,  be  allowed  to 
work  out  a  result  which  would  give 
priority  to  some  creditor  or  credi- 
tors over  others,  and  where  he  does 
so  he  may  be  compelled  to  pay  fur- 
ther sums  which  may  increase  the 
total  paid  over  the  penalty  of  the 
bond.  Commonwealth  v.  City  Trust, 
Safe  Deposit  &  Surety  Co.,  224  Pa. 
St.  223,  73  Atl.  425. 

61.  Leggett  v.  Humphrey,  21  How. 
(U.  S.)  66,  16  L.  Ed.  50. 


§  75  SUKETYSHIP  AND  GuAEANTY.  92 

surety  is  liable  for  the  legal  interest  which  has  accrued  from  the 
time  of  his  liability,  besides  the  genalty.^' 

§  75.  Misappropriation  of  Funds. — Where  the  principal  is 
bound  for  the  faithful  performance  of  his  duties,  the  contract 
will  fix  the  measure  of  the  surety's  liability;  and  he  will  not  be 
liable  for  defaults  of  his  principal  to  perform  any  duty  or  obli- 
gation arising  out  of  a  contract  or  otherwise  not  fairly  within  the 
provision  of  the  written  contract  or  bond  so  given  to  secure.  Thus, 
sureties  are  not  liable  on  a  bond  for  any  moneys  advanced  to 
their  principal  to  enable  him  to  prosecute  his  business  for  the 
obligee,  when  such  obligation  was  not  set  out  in  the  bond,  though 
they  are  liable  for  moneys  received  by  the  principal  in  his  line 
of  duty.^^  So  where  a  bond  is  given  by  an  overseer  of  the  poor, 
in  which  the  principal  was  to  account  for  all  sums  of  money  which 
came  to  his  hands  by  virtue  of  his  office,  the  sureties  are  not  liable 
for  moneys  which  he  borrows  without  authority  and  applies  to 
other  purposes  not  within  the  scope  of  his  business." 

Nor  where  a  bond  is  given  for  the  fidelity  of  a  firm  as  agents 
can  the  sureties  be  held  liable  for  funds  misappropriated  by  a 
member  of  the  firm  after  it  had  been  dissolved.*^ 

iSureties  are  not  liable  for  funds  of  their  principal  which  he 
misappropriates,  unless  such  moneys  are  designated  by  their  con- 
tract of  suretyship.®® 

62.  Arkansas.— James  v.  State,  65  Div.  (N.  Y.)  195,  90  N.  Y.  Supp.  1029, 

Ark.  415,  46  S.  W.  937.  affirmed  184  N.  Y.  544.  76  N.  E.  1093. 

Connecticut. — City  of  New  Haven  Wisconsin. — Whereatt  v.  Ellis,  103 

V.  Eastern  Pav.  Brick  Co.,  78  Conn.  Wis.  348,  79  N.  W.  416. 

689,  63  Atl.  517.  63.  Burlington  Ins.  Co.  v.  Johnson, 

Illinois.— Holmes  v.   Standard  Oil  120  111.  622,  12  N.  E.  205. 

Co.,  183  111.  70,  55  N.  E.  647.  64.  Leigh  v.  Taylor,  7  B.  &  C.  491. 

Kansas. — McMullen     v.     Wingfield  65.  Standard  Oil  Co.  v.  Arnestad, 

Building  &  Loan  Ass'n,  64  Kan.  298,  6  N.  D.  255,  69  N.  W.  197,  66  Am.  St. 

67  Pac.  892.  Rep.  604,  34  L.  R.  A.  861. 

Maine. — Wyman    v.    Robinson,    73  See  §  84  herein,  as  to  liability  on 

Me.  384.  bonds  for  acts  of  a  partnership. 

Missonri. — McDonald     v.     Loewen  66.  California, — Humboldt   Sav.   & 

(Mo.  App.  1910),  130  S.  W.  52.  Loan  Society  v.  Wennerhold,  81  Cal. 

New       York.   —    Degnon-McLean  528,  22  Pac.  920. 

Const.  Co.  V.  City  Trust,  Safe  Deposit  Georgia. — Smith  v.  Stephen,  53  Ga.. 

&  Surety  Co.  of  Philadelphia,  99  App.  300. 


93 


Scope  of  Surety  Contract. 


§§  '^6, 


§  76.  Increase  of  Funds. — Where  the  fund  is  increased  within 
the  legal  purview  of  the  contract,  the  surety  is  liable  for  his  prin- 
cipal's misappropriation  of  such  increase.  Thus,  where  the  prin- 
cipal receives  interest  on  the  fund  in  the  hands  of  his  depositary, 
his  surety  is  liable  for  default  in  paying  over  that  interest  to  the 
obligee."  And  so  where  the  State  by  appropriate  legislation  in- 
creases the  funds  in  the  hands  of  the  principal  the  surety's  lia- 
bility is  not  thereby  released  f^  and  interest  will  be  charged  from 
the  date  of  conversion,  for  which  the  sureties  will  be  liable.^*  And 
so  the  surety  will  be  liable  for  liquidated  damages.™  And  indefi- 
nite suretyship  extends  to  all  the  accessories  of  tlie  principal's  ob- 
ligation, such,  as  costs  and  the  like.'^  Unless  the  surety  limits 
his  liability  in  the  contract,  such  accessories  are  within  the  mean- 
ing of  the  contract  of  principal  and  surety. 

§  77.  Surety  May  Limit  His  Liability. — Where  the  surety 
states  the  amount  for  which  he  will  be  liable,  properly  incorpor- 
ated in  the  contract,  that  amount  fixes  the  extent  of  his  liability.^* 


Illinois. — Linch  v.  Littlefield,  16 
111.  App.  612. 

Indiana. — Urmston  v.  State,  73  Ind. 
175. 

MissourL — NoUey  v.  County  Court, 
11  Mo.  447. 

Nebraska. — Atterstein  v.  Alpaugh, 
9  Neb.  237. 

New  York. — Sutherland  v.  Carr, 
85  N.  Y.  105. 

Pennsylrania. — Commonwealth  v. 
Toms,  45  Pa.  St.  408. 

Burden  of  proying  time  of  misap- 
propriation. Presumably  money 
which  came  into  an  officer's  hands 
and  should  have  been  there  at  the 
time  of  the  execution  of  a  bond  for 
the  faithful  performance  of  his  duties 
was  still  in  his  possession  at  that 
time,  and  the  burden  is  on  a  surety 
to  prove  that  the  funds  presumably 
in  the  hands  of  his  principal  had 
heen  misappropriated  before  he  be- 
came liable  on  the  bond.  McMullen 
V.  Wingfield  Building  &  Loan  Ass'n, 


64  Kan.  298,  67  Pac.  892,  91  Am.  St. 
Rep.  236,  56  L.  R.  A.  924. 

67.  Hunt  V.  State  ex  rel.  City  of 
Anderson,  124  Ind.  306,  24  N.  E.  887; 
Comstock  V.  Gage,  91  111.  328. 

68.  People  v.  Backus,  117  N.  Y. 
196,  22  N.  E.  759. 

69.  Curtis  v.  United  States,  100  U. 
S.  119,  25  L.  Ed.  571;  Cassady  v. 
Trustees,  105  111.  560. 

70.  Gridley  v.  Capen,  72  111.  11. 

71.  Woolley  v.  Van  Valkenburgh, 
16  Kan.  20;  Lafayette,  etc.,  Ass'n  v. 
Kleinhoff,  40  Mo.  App.  388. 

See  Held  v.  Burke,  83  App.  Div. 
(N.  Y.)  509,  82  N.  Y.  Supp.  426. 

72.  Holthorne  v.  State  (Ind.  App. 
1912),  97  N.  E.  130;  Bullowa  v.  Orgo, 
57  N.  J.  Eq.  428,  41  Atl.  494. 

It  is  competent  for  one  person  to 
become  surety  for  other  sureties,  or 
to  limit  the  extent  of  his  liability 
with  respect  to  other  sureties.  Citi- 
zens' Nat.  Bank  v.  Bruch,  145  N.  C. 
316,  59  S.  E.  71. 


§    78  SUEETYSHIP    AND    GUARANTY.  94: 

So  if  the  sum  is  increased  beyond  the  amount  as  set  forth  in  the 
contract  for  which  the  surety  binds  himself  to  pay,  the  excess 
cannot  be  collected  from  the  surety,"  for  the  surety  cannot  be 
bound  beyond  the  scope  of  his  engagement;''*  he  is  bound  to  the 
extent  of  his  agreement,  and  only  by  reason  of  such  agreement.'^ 
And  a  surety  must  abide  by  the  terms  of  his  written  agreement 
as  to  tlie  amount  of  his  liability  despite  a  prior  parol  understand- 
ing to  the  contrary,  in  the  absence  of  fraud,  mistake  and  failure 
of  consideration.''^ 

While  a  surety  may  prove  the  fact  of  his  suretyship  by  parol  he 
cannot  be  heard  to  say  that  by  a  simple  oral  agreement  with  the 
payee  of  the  note  on  which  he  is  surety  his  liability  was  to  be 
limited  to  a  sum  less  than  expressed  by  the  terms  of  the  note.  If 
this  were  to  be  allowed  the  obligations  of  sureties  would  depend, 
not  upon  the  instrument  they  signed,  but  upon  their  veracity  and 
the  credulity  of  the  jury." 

Where  the  liability  of  sureties  is  each  independent  of  the 
other  under  the  contract  of  suretyship  as  written,  each  being  liable 
for  a  designated  part  of  the  obligation,  either  may  be  sued  and 
the  debt  of  the  other  forgiven  and  the  defendant  cannot  be  heard 
to  complain.''^ 

§  78.  Forged  Signatures. — Forgery  does  not  always  release 
the  liability  of  a  surety.  Thus,  when  the  name  of  one  or  more 
obligors  in  a  bond  or  note  or  other  writing  obligatory  has  been 
forged,  the  surety,  though  he  signed  in  the  belief  that  the  forged 

73.  Bragg  v.  Shaw,  86  111.  78;  Fin-  New  York.— Ludloy  v.  Simond,  2 
ney  v.  Condon,  86  111.  78;  Farmers',    Calne's  Cas.  29. 

etc.,  Bank  v.  Evans,  4  Barb.  (N.  Y.)  Ohio. — Stetson    v.    Bank,    12    Ohio 

487;  Kimball  W.  W.  Co.  v.  Baker,  62  St.  577. 

Wis.  526,  22  N.  W.  730.  Wisconsin.— Smith    v.    Lockwood. 

74.  Parker  v.  Wise,  6  Maul-^  &  S.  34  Wis.  77. 

239.  England. — Ellesmere  Brewing  Co. 

75.  Indiana. — Houck    v.     Graham,    v.  Cooper  (1896),  1  Q.  B.  75. 
123  Ind.  277,  24  N.  E.  113.  See  §§  66  et  seq  herein. 

Iowa. — Doud   V.   Walker,   48   Iowa  76.  Milan  Bank  v.   Richmond,  235 

634.  Mo.  532.  139  S.  W.  352. 

Massachusetts. — Bank  v.  Smith,  12  77.  Milan  Bank  v.  Richmond,  235 

AllPn  243.  Mo.  532,  139  S.  W.  352. 

Michigan.— Gay  t.  Hultz,  56  Mich.  78.  Bolton  v.  Gifford  &  Co.,  45  Tex. 

153,  22  N.  W.  271.  Civ.  App.  140,  100  S.  W.  210. 


99  Scope  of  Surety  Contract.  §  79 

name  was  genuine,  is  nevertheless  bound  if  the  payee  or  obligee 
accepted  the  instrument  without  notice  and  for  value.^® 

A  surety  signing  a  bond  after  other  sureties  have  executed  the 
same  affirms  the  genuineness  of  the  previous  signatures.*'^  The 
surety's  liability  is  not  changed,  though  two  names  or  more  of 
the  principals  are  forged,  the  fact  being  unknown  to  the  surety 
and  holder  when  delivered.*^  And  where  one  surety,  a  married 
woman,  is  released  on  account  of  coverture,  this  does  not  dis- 
charge the  other  surety.*^ 

In  order  to  estop  a  surety  from  claiming  that  his  signature  to 
a  note  was  a  forgery  it  is  held  that  it  must  appear  that  the  surety 
fraudulently  and  purposely  kept  such  information  from  the  holder 
of  the  note  and  that  the  principal  at  that  time  had  property  out 
of  which  the  payment  of  the  note  could  have  been  enforced.*^ 

§  79.  Additional  Employment. — If  the  office  held  by  the  prin- 
cipal is  altered  by  addition  of  new  duties,  the  surety  is  no  longer 
liable;  but  w'hen  the  principal  is  appointed  to  a  new  office,  the 
surety  is  still  liable  for  defaults  connected  with  the  old  office.** 
Where  the  omissions  of  the  principal  to  perform  his  duties  is 
wholly  disconnected  from  improper  acts  on  his  part  in  the  new 
business,  and  is  not  superinduced  by  his  new  appointment,  the 
surety  is  still  liable.*^  But  the  liability  of  the  surety  cannot  be 
extended  to  embrace  other  undertakings  not  specifically  covered 
by  his  bond.*^     So  where  the  liability  of  the  surety  is  limited  to 

79.  Illinois.— Stoner  v.  Milliken,  85  81.  Chase  v.  Hathorn,  61  Me.  505. 
111.  218.  82.  Warren   v.  Tobacco  Exchange 

Indiana.— Helms  v.  Society,  73  Ind.  (Ky.) ,  55  S.  W.  912. 

325.  83.  Maxwell  v.  Wright   (Ind.  App. 

Kentucky.— Wheeler    v.     Traders'  1902),  64  N.  E.  893. 

Deposit  Bank,  107  Ky.  653,  55  S.  W.  84.  Skillett  v.  Fletcher,  L.  R.  2  C. 

552.  P   469. 

Massachusetts. — Veazie  v.  Willis,  6  See  §  72  herein,  as  to  employment 

Gray  90.  on  condition  changed  by  employer  or 

Nebraska, — Lombard  v.  Mayberry,  by  the  legislature. 

24  Neb.  674,  40  N.  W.  271.  85.  Home  Savings  Bank  v.  Traube, 

Compare  Southern  Cotton  Oil  Co.  75  Mo.  199. 

V.  Bass,  126  Ala.  343,  28  So.  576.  86.  Noyes  v.  Granger,  51  Iowa  227, 

80.  Johnson  County  v.  Chamber-  1  N.  W.  519;  Kellogg  v.  Scott,  58  N. 
lain  Banking  House,  80  Neb.  96,  113  J.  Eq.  344,  44  Atl.  190. 

N.  W.  1055;  Selser  v.  Brock,  3  Ohio 
St.  302. 


§  80  Suretyship  and  Guaranty.  95 

the  transactions  and  defaults  of  a  principal,  he  cannot  be  mad» 
liable  for  defalcations  and  omissions  of  another  principal,  who 
joins  the  first  in  the  business;*^  because  where  a  surety  agrees  to 
answer  for  the  defaults  of  a  principal,  he  does  not  thereby  agree 
to  answer  for  the  defaults  of  a  firm  of  which  his  principal  may 
become  a  partner.^^ 

So  as  a  general  rule,  in  the  absence  of  legislation,  or  by  ex- 
press agreement,  there  is  no  liability  on  the  part  of  a  contractor 
to  respond  to  parties  employed  by  a  sub-contractor/*  and  so  the 
sureties  of  the  contractor  are  not  liable  to  such  employees.^*^ 

§  80.  Act  of  Principal  Not  in  Line  of  His  Business. — A  surety 
will  not,  in  general,  be  relieved  from  responsibility  because  the 
act  of  the  principal  which  occasioned  the  loss  was  not  strictly  in 
the  line  of  his  duties  of  his  office,  or  was  done  in  the  course  of 
temporary  or  casual  performance  of  other  duties  at  the  request 
of  his  employer.^^  Nor  will  the  imposition  of  additional,  distinct 
and  consistent  duties  upon  the  principal,  or  his  appointment  to 
an  additional  office,  his  original  office  being  retained,  necessarily 
relieve  the  surety  from  his  obligation,  if  the  new  duties  or  the  new 
office  have  no  such  connection  with  the  old  as  to  interfere  with  or 
affect  the  original  employment.®^  But  if  the  principal  is  pro- 
moted and  such  promotion  involves  a  material  alteration  of  tlie 
principal's  duties,  this  will  increase  the  peril  of  the  surety  and 
relieve  him  from  his  bond.®^  And  in  general,  the  liability  of  a 
surety  on  an  official  bond  cannot  without  his  consent  be  extended 
or  enlarged  by  the  obligee  or  by  operation  of  law.®* 

,  87.  White    Sewing    Mach.    Co.    v.  ter  Bank  v.  Ellwood,  21  N.  Y.  88;   Ger- 

Hines,  61  Mich.  423,  28  N.  W.  157.  man  Bank  v.  Auth,  87  Pa.  St.  419. 

88.  Parham  Sewing  Mach.  Co.  v.  92.  Mayor  v.  Kelley,  98  N.  Y.  468; 
Brock,  113  Mass.  194;  Palmer  v.  American  Tel.  Co.  v.  Lennig,  139  Pa. 
Bagg,  56  N.  Y.  523;  Dobbins  v.  Brad-  St.  594,  595,  21  Atl.  162. 

ley,  15  Wend.    (N.  Y.)    422;    Dry   v.  93.  Manufacturers'  Bank  v.   Dick- 
Davy,   10  Ad.   &  El.   30;    Billairs  v.  erson,  41  N.  J.  L.  448. 
Ebsworth,  3  Camp.  52.  94.  Smith  v.  United  States,  2  Wall. 

89.  Wells  V.  Williams,  39  Barb.  (N.  (U.  S.)  219,  17  L.  Ed.  788;  Miller  v. 
Y.)  567.  Stevens,  9  Wheat.    (U.  S.)   680,  6  U 

90.  Faurote  v.  State,  110  Ind.  463,  Ed.  189;  Single  Machine  Co.  t. 
11  N.  E.  472.  Hebbs,  21  Mo.  App.  574;  Besinger  t. 

91.  Detroit  Sav.   Bank  v.   Ziegler,  Wren,  100  Pa.  St.  500. 

49  Mich.  157,  13  N.  W.  496;  Roches-       See,  also,  cases  cited  in  §§  70  and 

72  herein. 


"97  Scope  of  Surety  CoNTit.vcT.  §§  81,  82 

§  8i.  Becoming  Surety  for  Payment  of  Rent. — A  party,  as  in 
other  contracts  of  suretyship  and  guaranty,  may  become  a  surety 
to  the  payment  of  rent.  And  where  rent  is  payable  in  install- 
ments and  the  landlord  releases  the  tenant  as  to  payment  of  in- 
stallments due  or  past  due,  it  will  not  relieve  the  surety  of  the 
tenant  from  liability  as  to  subsequent  installments  f^  because  each 
installment  is  a  separate  and  independent  demand,  and  so  the 
extension  of  the  time  of  payment,  or  release  of  payment,  will  not 
impair  the  obligation  of  the  surety  as  to  the  others.^® 

§  82.  Ten,ant  Holding  Over. — The  surety  may  become  liable, 
if  the  contract  so  expresses  the  intention  of  the  parties,  for  rent 
where  the  tenant  holds  over."  But  if  the  lease  does  not  provide 
that  the  surety  shall  be  liable  for  a  second  term  or  for  rent  In 
case  the  tenant  holds  over,  the  surety  is  liable  only  for  the  term 
stated  in  the  lease,  for  it  cannot  be  implied  that  the  surety  agreed 
to  such  extension.®* 

If  the  lease  is  defective,  but  the  tenant  enters  upon  the  premises, 
then  the  surety  is  liable.®^  And  a  guarantor  of  the  payment  of 
rent  is  not  discharged  from  liability  for  rent  past  due,  by  a  sur- 
render of  the  lease,  and  of  rent  thereafter  to  accrue,  without 
his  knowledge  or  coonsent.  Nor  is  he  released  by  the  destruction 
of  the  building  by  fire  as  to  rent  thereafter  accruing.^  And  when 
the  rent  is  specifically  guaranteed  to  the  landlord,  he  cannot  trans- 
fer a  legal  title  to  the  guaranty  to  his  assignee  of  the  lease,^  be- 
cause a  special  guaranty  cannot  be  assigned,  as  it  is  limited  to 
the  person  to  whom  it  is  addressed,  and  usually  contemplates  a 
trust  or  reposes  a  confidence  in  such  person.  Such  a  guaranty 
may  not  be  assigned  until  the  right  of  action  has  accrued.^     But 

95i,  Kingsbury     v.     Williams,     53  98.  Brewer  v.  Thorp,  36  Ala.  9. 

Barb.   (N.  Y.)  142;   Ducker  v.  Rapp,  99.  Clark  v.  Gordon,  121  Mass.  330. 

67  N.  Y.  464;  Coe  v.  Cassidy,  72  N.  Y.  1.  Kingsbury    v.    Westgate,    61    N. 

133.  Y.  336. 

As  to  discharge  of  surety  on  bond  2.  Potter  v.  Gronbeck,  117  111.  404, 

to  secure  lease,  see  §  111  herein.  7  N.  E.  586. 

96.  Ducker  v.  Rapp,  67  N.  Y.  464.  3.  Jex  v.  Straus,  122  N.  Y.  293,  25 

97.  Rice  v.  Loomis,  130  Mass.  302,  N.  E.  478. 
1    N.    E.    548;    Dufau   v.   Wright,   25 

Wend.  636;  Debloig  v.  Earle,  7  R.  I. 
26. 

7 


§§    83,    8^  SUKETYSHIP   AND    GuAEANTY.  98 

one  who  purchases  a  note  which  is  guarantied  generally,  is  en- 
titled to  the  benefit  of  such  general  guaranty,*  though  he  buys  in 
ignorance  thereof.^ 

§  83.  Principal  Associating  With  Others. — A  surety  for  a 
principal  cannot  be  made  liable  for  default  if  other  parties  be- 
come associated  with  his  principal  in  business.  Thus,  where  the 
principal  enters  a  partnership  the  surety  is  not  liable  for  the 
partnership  defaults,  because  it  is  a  material  change  as  to  his 
liability.  And  conversely,  where  the  principal  takes  another  per- 
son into  his  business,  his  surety  is  no  longer  liable.  Taking  a 
partner  is  a  violation  of  the  contract  with  the  surety ;  he  engages 
as  surety  for  the  conduct  of  one  man,  and  to  bring  two  or  more 
principals  into  the  business  would  be  a  violation  of  his  contract.* 
So  a  guaranty  of  the  payment  of  goods  supplied  to  two  parties 
is  made  invalid  when  one  partner  goes  out  of  business  with  the 
consent  of  his  copartner  and  the  vendor.^ 

§  84.  Several  Principals — Partnership. — If  a  party  engages  as 
surety  to  several  individuals,  his  obligation  does  not  extend  be- 
yond the  death  or  retirement  of  any  of  them  for  whom  he  has 
engaged  to  be  answerable.  This  rule  applies  as  well  to  parties 
to  whom  the  surety  is  bound,  the  obligee,  as  to  those  for  whom 
he  is  bound,  the  obligors.^ 

In  the  nature  of  things  there  cannot  be  a  partnership  consist- 
ing of  several  persons,  in  which  there  are  not  some  possessed  of 
greater  business  capacity  than  the  others,  and  it  may  be  that  a 

4.  Ellsworth  v.  Harmon,  101   111.  S.)  203;  London  Assurance  Corpora- 

274;  Claflin  v.  Ostrom,  54  N.  Y.  581.  tion  v.  Bold,  6  A.  &  E.  523. 

6.  Tidioute  Savings  Bank  v.  Lib-  7.  Bill  v.  Barker,  16  Gray  (Mass.) 

bey,  101  Wis.  193,  77  N.  W.  182.  62. 

6.  Connecticut  Mut.  L.  Ins.  Co.  t.  8.  State  v.  Boon,  44  Mo.  254;  Blair 

Scott,    81    Ky.    540;    Parham    Sew.  v.  Ins.  Co.,  10  Mo.  559;   Penoyer  v. 

Mach.  Co.  V.  Brock,  113  Mass.  197;  Watson,  11  Johns.  (N.  Y.)  100;  Smith 

White  Sewing  Mach.  Co.  v.  Hines,  61  v.    Montgomery,    3    Tex.    203;    Uni- 

Mich.  423,  28  N.  W.  157;   Matthews  versity  of  Cambridge  v.  Baldwin,  5 

-V.  Garman.  110  Mich.  559,  68  N.  W.  Mees.  &  W.  585;  Simpson  v.  Cook,  1 

243;   Bellaire  v.  Ebsworth,  3  Camp.  Bing.   452;    Myers  v.   Edge,   7  T.   R. 

55;  Montefiore  v.  Lloyd,  15  C.  B.  (N.  254;    Strange   v.    Lee.    3   East   484; 

Weston  V.  Barton,  4  Taunt.  673. 


09!  Scope  of  Surety  Conteact.  §  85 

partner  dying  or  going  out  of  the  firm  may  be  the  very  one  on 
whom  the  surety  himself  relies;  it  would  be,  therefore,  very  un- 
reasonable to  hold  the  surety  to  the  contract  after  such  change.' 

A  surety  who  engages  to  be  responsible  for  the  honesty  of  a 
firm  may  be  entirely  influenced  by  the  consideration  that  one  of 
the  partners  is  a  man  of  integrity,  and  of  such  strength  of  char- 
acter, and  such  shrewdness  and  watchfulness  in  business  affairs, 
that  the  risk  of  dishonesty  from  the  action  of  the  other  partner, 
in  whom  the  surety  can  place  no  trust,  is  reduced  to  the  mini- 
mum/*' 

The  only  exceptions  to  this  rule  are:  (1)  Where  the  nature 
of  the  obligation  expressly  limits  the  liability  or  extends  it  to  the 
survivors,  whether  associated  together  or  otherwise.  (2)  Where 
the  parties  for  or  to  whom  the  sureties  are  bound,  are  described 
as  a  class,  company,  bank,  or  the  like,  and  not  to  the  members  or 
partners  nominatim,  so  as  plainly  to  imply  that  the  security  is 
given  to  or  for  the  class  or  body  as  such,  regardless  of  changes  in 
the  integral  parties.^^ 

§  85.  Death  of  Surety. — The  death  of  the  surety  does  not  ord- 
inarily terminate  his  contract  when  it  is  a  continuing  one.  In 
such  case  if  defaults  occur  after  his  death  his  estate  is  liable  for 
the  default  of  the  principal.  Thus,  where  a  bond  is  given  bind- 
ing the  surety,  "  his  heirs,  executors  and  administrators,"  the  lia- 
bility of  the  surety  is  not  terminated  by  his  death,  but  extends  to 
his  estate.^  So  a  continuing  suretyship  is  not  terminated  by  the 
death  of  the  surety  as  to  moneys  and  property  of  the  obligee,  in 
the  line  of  the  business,  that  may  come  into  the  hands  of  his  prin- 
cipal after  his  death  ;  upon  default  of  the  principal  the  obligee  has 
recourse  to  his  estate.^^  The  liability  of  a  surety  on  an  official 
bond  during  the  continuance  of  the  principal's  term  of  office,  ex- 
tends as  well  to  definite  defaults  committed  after  as  before  the 

9.  Weston  v.  Barton,  4  Taunt.  673.       12.  Royal    Ins.    Co.    v.    Davis,    40 

10.  Standard  Oil  Co.  v.  Arnestad,  Iowa  499;  Gordon  v.  Calvert,  4  Russ. 
6  N.  D.  255,  69  N.  W.  197,  66  Am.  St.    581. 

Rep.  604,  34  L.  R.  A.  861,  per  Cor-  Principal  should  be  joined  in  suit 

liss,  J.  against  estate  of  surety.     Hume  v. 

11.  Gorgan  v.  School  District,  4  Perry  (Tex.  Civ.  App.  1911),  136  S. 
Colo.  53;  Barclay  v.  Lucas,  1  Term  W.  594. 

R.  291.  13.  Rapp  v.  Ins.  Co.,  113  III.  390. 


§86  Suretyship  and  Guakanty.  100 

death  of  the  surety.^*  Whenever  the  undertaking  of  the  surety 
is  for  a  definite  period,  as  for  the  officer's  conduct  during  his  term 
of  office,  or  for  the  repayment  of  advances  made  to  the  principal 
in  the  bond,  until  notice  is  given  the  obligee  that  the  liability  is 
terminated,  the  estate  of  the  surety  in  the  hands  of  his  administra- 
tor or  executor  is  answerable  for  any  defaults  of  the  principal  oc- 
curring after  his  death;  this  is  especially  so  where  the  surety 
binds  his  "  heirs,  executors  and  administrators  "  for  the  perform- 
ance of  his  undertaking.^^ 

But  the  estate  of  a  surety  was  held  to  be  relieved  from  liability 
where  the  deceased's  wife,  who  was  administratrix,  was  ignorant 
as  to  the  liability  of  her  husband  as  surety  on  a  note  and  the  bank 
which  held  the  note  kept  her  in  ignorance  thereof  and  by  positive 
statements  of  the  cashier  made  her  believe  that  her  husband's 
estate  was  not  liable  and  it  appeared  that  soon  after  the  note  fell 
due  the  bank  had  an  abundance  of  money  in  its  possession  to  pay 
the  note,  but  failed  to  apply  it  in  payment  thereof. ^^ 

§  86.  Construing  a  Joint  Obligation  as  Several. — A  court  will 
not  vary  the  legal  effect  of  the  instrument  by  making  it  several 
as  well  as  joint  unless  it  can  see  either  by  independent  testimony 
or  from  the  nature  of  the  transaction  itself,  that  the  parties  con- 
cerned intended  to  create  a  separate  as  well  as  a  joint  liability.  If 
from  fraud,  ignorance  or  mistake,  the  joint  obligation  does  not 
express  the  meaning  of  the  parties,  it  will  be  reformed  so  as  to 
conform  to  it.  This  has  been  done  where  there  is  a  previous  equity 
which  gives  the  obligee  the  right  to  several  indemnity  from  each 
of  the  obligors,  as  in  the  case  of  money  lent  to  both  of  them.  In 
such  case  a  court  of  equity  will  enforce  the  obligation  against  the 
representatives  of  the  deceased  obligor,  although  the  bond  be  joint 
and  not  several,  on  the  ground  that  the  lending  to  both  creates  a 
moral  obligation  in  both  to  pay,  and  that  the  reasonable  presump- 
tion is  the  parties  intended  their  contract  to  be  joint  and  several, 
but  through  fraud,  ignorance,  mistake  or  want  of  skill,  they  failed 

14.  Green  v.  Young,  8  Me.  14.  desty,  28  Ky.  Law  Rep.  1285,  91  S. 

15.  Moore  v.  Wallis,  18  Ala.  458;    W.  729. 

Hightown    v.    Moore,    46    Ala.    387;        See,     also,     Pursiful    v.    Pineville 
Mowbray  v.  State,  88  Ind.  327.  Banking  Co.,  97  Ky.  154,  160,  30  S. 

16.  Bank   of  Taylorsville  v.  Har-   W.  203. 


lOli  Scope  of  Surety  Contract.  §  S6 

to  accomplish  their  object."  This  presumption  is  never  made  in 
the  case  of  a  mere  surety,  whose  duty  is  measured  alone  by  the 
legal  force  of  the  bond,  who  is  under  no  moral  obligation  whatever 
to  pay  the  obligee  independent  of  his  covenant,  and  consequently 
there  is  nothing  on  which  to  found  an  equity  for  the  interposition 
of  a  court  of  chancery.  If  the  surety  should  die  before  his  prin- 
cipal his  representatives  cannot  be  sued  at  all  on  the  joint  obliga- 
tion ;  nor  will  they  be  charged  in  equity^^ 

It  is  the  rule  that,  in  case  of  joint  obligation  of  sureties,  if  one 
of  the  joint  obligors  die,  his  representatives  are  discharged  and 
the  survivors  alone  can  be  sued,  but  where  the  joint  obligors  are 
two  principal  debtors  who  receive  some  benefit  from  the  joint  ob- 
ligation, courts  of  equity  have  taken  jurisdiction  in  case  of  the 
death  of  one  of  the  obligors  and  enforced  the  obligation  against 
his  representatives.  Because  in  conscience  the  estate  of  the  de- 
ceased obligor  ought  to  respond  to  the  obligation.^*  But  the  mere 
joint  obligation  of  a  deceased  principal  is  not  sufficient  to  create 
an  equity  against  his  estate.  His  estate  cannot  be  pursued  in 
equity  unless  there  is  some  moral  obligation  antecedent  to  the 
bond.  But  such  obligation  cannot  exist  where  the  deceased  is  a 
mere  surety.^'' 

Where  persons  sign  promissory  notes  as  sureties  and  in  each  of 
them  they  "  jointly  and  severally  "  promise  to  pay  the  amount 
stated  each  becomes  liable  individually  and  severally  as  well  as 
jointly  for  the  payment. ^^ 

17.  Powell  V.  Kettelle,  1  Gil.  (III.)        19.  Boskin   v.   Andrews,   87   N.   Y. 
49;    Richardson  v.  Draper,  87  N.  Y.    337. 

337;  Baskin  v.  Andrews,  53  Hun  95,  6  20.  United  States  v.  Price,  9  How. 

N.  Y.  Supp.  441.  (U.  S.)   83,  13  L.  Ed.  56;   Pickersgill 

18.  Pickersgill  v.  Lahens,  15  Wall.  v.  Lahens,  15  Wall.   (U.  S.)    140,  21 
(U.    S.)    140,  21   L.   Ed.   119;    United  L   Ed.  119. 

States  V.   Price,  9  How.    (U  S.)    83,  21.  East       Bridgewater       Savings 

13  L.  Ed.  56,  1  Wall.  Jr.  173;  Waters  Bank  v.  Bates,  191  Mass.  110,  77  N. 

V.  Riley,  2  Harris  &  G.   (Md.)   311;  E.  711,  citing  Hunt  v.  Adams,  5  Mass. 

Bradley    v.    Burwell,    3    Denio    65;  358;    Hunt  v.   Adams,   6   Mass.    519, 

Weaver    v.    Shyrock,    6    Serg.    &    R.  523;    Union  Bank  v.  Willis,  8  Mete. 

(Pa.)  262.  (Mass.)    504,  510.     It  was  also  held 

In  some  States  the  obligation  of  that  the  defendant  signed  as  surety 

the  surety  survives  his   death,   and  did  not  affect  her  primary  liability 

his   estate   is   bound,   controlled   by  to  the  holder  of  the  notes,  but  only 

statute.     Redmon  v.  Marvel,  73  Ind.  showed  the  relations  of  the  makers 

693;  Miss.  Code  2353.  to  one  another. 


§  87i  Suretyship  and  Guaranty.  102 

§  87,  Revoking  Suretyship. — It  has  already  been  shown  when 
death  of  surety  revokes  his  liability.  The  general  rule  is  a  surety 
or  guarantor  cannot  relieve  himself  of  future  liability  by  serv- 
ing notice  on  the  obligee  in  the  absence  of  a  stipulation  in  the 
contract  to  that  effect.  Thus,  where  a  surety  becomes  liable  for 
the  rent  of  premises  for  a  time  certain,  the  mere  notice  by  him 
that  he  will  not  be  liable  further  has  no  effect  upon  his  contract ; 
he  cannot  dissolve  his  contract  at  pleasure.^^  If  a  surety  desires 
to  terminate  his  liability  by  notice,  he  must  in  the  absence  of  a 
statute  so  specify  in  his  contract.^' 

In  the  case  of  a  simple  guaranty  for  a  proposed  loan,  the  right 
of  revocation  exists  before  the  proposal  has  been  acted  upon.  The 
promise  to  guarantee  for  a  time  definite  creates  no  additional 
liability  on  the  guarantor,  but,  on  the  contrary,  fixes  the  limit  in 
time  beyond  which  his  liability  cannot  extend.  So  such  a  guar- 
anty to  secure  money  to  be  advanced  to  a  third  party  on  discount 
to  a  certain  amount  for  such  time  is  revocable  within  that  time.^* 

A  mere  offer  to  guarantee  is  only  binding  so  far  as  it  is  acted 
upon,  and  the  guarantor  may  revoke  the  offer  before  its  accept- 
ance. Where  the  guaranty  is  not  a  continuing  one,  the  guarantor 
may  terminate  his  responsibility  at  any  time  by  giving  notice  to 
the  other  party  that  he  will  be  holden  no  longer.  Thus,  an  ac- 
commodation note,  made  payable  at  a  bank  on  demand,  may  be 
pledged  by  the  principal  as  a  continuing  guaranty  for  future 
loans,  to  be  made  to  him  by  the  bank ;  but  the  surety  may  termi- 
nate his  responsibility  by  notice.^^  A  guaranty  may  be  revoked 
at  any  time  when  the  promise  creates  no  obligation,  but  is  in  the 
nature  of  a  proposal.^®  And  when  a  surety  has  a  right  by  his 
contract  to  terminate  his  liability  by  giving  notice,  after  notice 
he  is  no  longer  liable  for  subsequent  acts  of  his  principal." 

22.  Coe  V.  Vogdes,  71  Pa.  St.  383.       26.  Offord  v.  Davies,  12  C.  B.   (N. 

23.  Calvert  v.  Gordan,  3  Man.  &  S.)  748;  Jordan  v.  Dobbins,  122  Mass. 
Ry.  124.  168;  Hyler  v.  Habich,  150  Mass.  112, 

Consent    of   obligee's    agent   held  22  N.  E.  765. 

sufficient.    White  Sewing  Mach.  Co.  27.  Pleasant's  Appeal,   75   Pa.   St. 

V.   Courtney,   141   Col.   674,   75    Pac.  383. 

296.  Where  one  of  the   sureties   on  a 

24.  Offord  V.  Davies,  12  C.  B.  (N.  guardian's  bond  caused  to  be  exe- 
S.)  748.  cuted  a  notice  to  require  the  guard- 

25.  Agawam  Bank  v.  Strever,  18  ian  to  execute  a  new  bond,  the  notice 
N.  Y.  502.  being  only  for  the  purpose  of  releaa- 


103  Scope  of  Subety  Contkact.  §  88 

And  where  the  period  of  the  surety's  liability  is  not  fixed,  he 
can  terminate  his  liability  by  giving  notice  to  the  obligee  that  he 
will  be  no  longer  bound.^^  In  giving  this  notice,  it  should  be  clear 
^nd  explicit  and  not  ambiguous.^^  In  continuing  contracts  guar- 
antying the  fidelity  of  a  person,  or  employee,  the  revocation  may 
be  made  upon  proper  notice,  but  the  right  must  be  exercised  rea- 
sonably, giving  the  employer  a  reasonable  time  to  adjust  the 
changed  circumstances.  Thus,  the  employer  cannot  be  compelled 
to  discharge  the  employee  instantaneously,  but  he  may  take  a 
reasonable  time  to  do  it.^'' 

In  a  proceeding  by  a  surety  to  be  relieved  from  liability  upon 
a  note  it  is  held  that  the  principal  is  not  a  necessary  party.^^ 

§  88.  Default  of  Principal. — Where  the  person  employed  com- 
mits an  act  of  dishonesty  or  defaults  and  is  unfaithful  to  his 
trust,  which  is  known  to  his  employer,  the  employer  is,  in  duty 
bound  for  his  own  protection,  to  take  precaution  for  his  own  safety 
which  the  surety  may  require  to  be  taken  for  his,  in  order  that 
future  defaults  may  be  avoided.^^  Knowledge  of  the  dishonesty 
of  the  employee  by  the  employer,  which  renders  him  unfit  for  the 
place,  without  disclosure  of  the  fact  to  the  guarantor  or  surety, 
terminates  the  contract,  and  confines  the  liability  to  acts  already 
<ione." 

But  this  conduct  of  which  the  employer  has  knowledge,  and 
which  will  release  the  guarantor  or  surety  from  further  liability, 
must  relate  to  the  service  in  which  the  principal,  or  employee,  is 
engaged,  and  must  be  something  more  than  mere  delinquency, 

Ing  the  surety  named  in  the  notice,  Bank,  102  Ind.  332,  1  N.  E.  805;  Bost- 

and   the   guardian    executes    a   new  wick  v.  Van  Voorhis,  91  N.  T.  353. 

bond,  all  the  sureties  on  both  bonds,  31.  Reeves  &  Co.  v.  Jowell   (Tex. 

except  the  surety  making  the  motion  Civ.  App.  1911),  140  S.  W.  364. 

for  a  release,  are  liable  for  both  the  32.  Dwelling    House    Ins.    Co.    v. 

past  and  future  acts  of  the  guardian,  Johnston,  90  Mich.  170,  51  N.  W.  200. 

but  the  one  so  mentioned  is  liable  33.  La    Rose    v.    Logansport    Nat. 

only  for  the  past  acts  of  the  guard-  Bank,    102    Ind.    332,    1    N.    E.    805; 

Ian.     Abshire  v.  Rowe,  23  Ky.  Law  Graves  v.  Bank,  10  Bush   (Ky.)   23; 

Rep.  1854,  66  S.  W.  394.  Emery  v.  Baltz,  94  N.  Y.  408;   Hunt 

28.  Pratt  v.  Trustees,  93  111.  475;  v.  Roberts,  45  N.  Y.  691;  Phillips  v. 
Jendevine  v.  Rose,  36  Mich.  54.  Foxall,  L.  R.  7  Q.  B.  666;  Burgess  v. 

29.  Lenusse  v.  Barker,  3  Wheat.  Eve,  L.  R.  13  Eq.  450;  Sanderson  v. 
(U.  S.)  101,  4  L.  Ed.  343.  Oston,  L.  R.  8  Exch.  73. 

80.  La    Rose   v.    Logansport    Nat. 


§§  89,  90  Suretyship  and  Guaranty.  104 

having  no  relation  to  or  connection  with  the  subject-matter  of  the 
guaranty  or  suretyship.^* 

§  89.  Revival  of  Surety's  Liability. — At  common  law  an  oral 
acknowledgment  is  sufficient  to  revive  a  barred  debt.^^  In  some 
States  the  promise  must  be  express,  or  an  additional  promise  with 
a  performance  of  a  condition,  or  a  qualified  admission  that  the 
debt  is  due  and  unpaid.  The  promise  must  be  of  such  character 
as  to  clearly  show  a  recognition  of  the  debt  and  an  intention  to 
pay  it.^^  Such  new  promise  requires  no  new  consideration  to 
support  it."  So  where  a  surety  is  relieved  of  liability  on  a  note, 
and  subsequently  he  makes  a  part  payment  of  the  note  and  prom- 
ises to  pay  the  balance  with  knowledge  that  his  liability  had  been 
extinguished,  it  will  bind  him,  as  it  revives  his  liability.^^  Some 
decisions,  however,  hold  that  a  new  consideration  as  well  as  a  new 
promise  is  necessary  to  take  the  case  out  of  the  operation  of  the 
statute  of  limitation.^^  But  this  matter  is  regulated,  in  many 
States,  by  statutory  provisions. 

Under  the  common  law,  where  a  surety  has  been  released  by 
the  extension  of  the  time  of  payment,  his  liability  will  be  revived 
by  a  new  promise  to  pay,  or  by  his  absolute  and  unqualified  ac- 
knowledgment of  the  existence  of  the  debt,  which  implies  a  prom- 
ise to  pay.*" 

§  90.  Part  Payment  By  One  of  Several  and  Joint  Debtors. — 
The  American  doctrine  is  that  a  part  payment  by  one  of  several 
joint  debtors  is  inoperative  to  prevent  the  running  of  the  statute 
of  limitations  as  to  the  others.*^  In  order  to  prevent  the  running 
of  the  statute,  payment  must  be  made  by  the  debtor  in  person, 
or  for  him  by  authority,  or  for  him  and  in  his  name  without  au- 

34.  La  Rose  v.  Logansport  Nat.  39.  Van  Derveer  v.  Wright,  6 
Bank,  102  Ind.  332,  1  N.  E.  805;  An-    Barb.  (N.  Y.)  547. 

drews  v.  Beall,  9  Cow.   (N.  Y.)   693;  40.  Banning  v.  Hall,  70  Minn.  89. 

Atlas  Bank  v.  Brownell,  9  R.  I.  168.  72  N.  W.  817;   Fowler  v.  Brooks,  13 

35.  Perkins  v.  Cheney,  114  Mich.  N.  H.  240;  Bramble  v.  Ward,  40  Ohio 
567,  72  N.  W.  595.  St.  267;   Smith  v.  Winter,  4  Mees.  & 

36.  Carroll  v.  Forsyth,  69  111.  127.  W.  454;  Stevens  v.  Lynch,  12  East  38. 

37.  Parsons  v.  Dickinson,  23  Mich.  41.  Waughop  v.  Bartlett,  165  111. 
56;  Tebbetts  v.  Dowd,  23  Wend.  (N.  124,  46  N.  E.  197;  Willoughby  v. 
Y.)  379.  Irish,  35  Minn.  63,  27  N.  W.  379. 

38.  Hinds  v.  Ingham,  31  111.  400. 


105  Scope  of  Surety  Contract.  §  90 

thority,  but  subsequently  ratified  by  him.  The  mere  fact  that  he 
has  knowledge  of  payment  being  made  by  his  co-debtor  is  not 
sufficient.'*^  Hence,  a  partial  payment  of  a  promissory  note  or  debt 
by  the  principal  debtor  will  not  suspend  the  statute  of  limitations 
as  to  the  surety/^  Because  the  partial  payment  voluntarily  made 
by  a  debtor  upon  a  claim  or  debt  is  in  the  nature  of  an  acknowl- 
edgment or  admission  by  him  of  his  liability  for  the  whole  de- 
mand, and  from  the  fact  that  he  made  the  payment,  a  new 
promise  on  his  part  to  pay  the  remainder  of  the  debt  may  be  im- 
plied, and  under  this  legal  inference  such  new  promise  arises  at 
the  time  the  partial  payment  is  made,  but  this  does  not  renew  the 
debt  as  to  his  co-debtors."  Thus,  partial  payment  made  by  one 
debtor  on  a  note,  will  not  suspend  the  running  of  the  statute  in 
favor  of  the  other  debtors  thereon,  although  the  party  paying  be 
the  principal  debtor  and  the  others  only  sureties/^ 

The  duty  resting  upon  a  surety  to  see  that  his  principal  per- 
forms the  contract  guaranteed,  subsists  as  a  moral  obligation  after 
the  statute  of  limitation  has  run  against  the  right  to  enforce  it, 
and  will  support  a  new  promise  by  the  surety  to  answer  for  the 
principal's  default.^® 

But  other  courts,  following  the  English  rule,  hold  that  part 
payment  by  one  of  the  several  and  joint  makers,  before  the  statute 
attaches,  takes  it  out  of  the  operation  of  the  statute  as  to  the 
other  debtors,  or  makers.     The  principle  on  which  payment  by  a 

42.  McMullen  v.  Rafferty,  89  N.  Y.   Willoughby  v.  Lush,  35  Minn.  63,  27 
456;  Littlefield  v.  Littlefield,  91  N.  Y.    N.  W.  379. 

203.  New  York.— McLaren  v.  McMartin, 

43.  Mozingo  v.  Ross,  150  Ind.  688,  36  N.  Y.  88;  Winchell  v.  Hicks,  18 
50  N.  E.  867.  N.  Y.  558;   Harper  v.  Fairley,  53  N. 

44.  United  States. — Bell  v.  Morri-  Y.  442;  Shoemaker  v.  Benedict,  11 
son,  1  Pet.  351,  7  L.  Ed.  174.  N.  Y.  176;  Van  Keuren  v.  Parmelee, 

Georgia. — Hunter  v.  Robertson,  30  2  N.  Y.  523 ;   Graham  v.  Selover,  59 

Ga.  479.  Barb.  313. 

Kansas.— Davis  v.  Clark,  58  Kan.  Ohio.— Vance  v.  Hair,  25  Ohio  St. 

454,  49  Pac.  665;    Steele  v.   Souder,  349;    Morienthal   v.  Mosler,   16  Ohio 

20  Kan.  39.  St.  566. 

Louisiana. — Smith  v.  Coon,  22  La.  45.  Waughop   v.   Bartlett,   165   111. 

Ann.  445;  Succession  of  Voorheis,  21  124,  40  N.  E.  197;   Mozingo  v.  Ross, 

La.  Ann.  659.  150  Ind.  688,  50  N.  E.  867;   Steele  v. 

Minnesota.  —  Pfenninger    v.    Ko-  Souder,  20  Kan.  39. 

kesch,   68  Minn.  81,  70  N.  W.  867;  46.  Perkins   v.   Cheney,   114   Mich. 

567,  72  N.  W.  595. 


§§    91,    92  SUEETTSHIP   AND   GUAKANTT.  106 

joint  debtor  is  allowed  to  affect  the  other  parties,  is  the  community 
of  interest  among  them,  which  creates  the  presumption  that  the 
party  paying  would  not  acknowledge  that  which  is  adverse  to  his 
own  interest,  and  therefore  it  will  be  in  the  interest  of  the  others 
and  bind  them." 

§  91.  Absence  of  Principal  from  the  State. — Under  the  gen- 
eral American  rule,  the  absence  of  the  principal  from  the  State 
will  not  suspend  the  running  of  the  statute  in  favor  of  the  surety.''* 
Because  the  principal's  and  surety's  liability  are  several;  and 
where  there  is  a  several  liability,  each  debtor  is  entitled  to  the 
protection  of  the  statute,  and  can  be  deprived  of  it  only  by  some 
personal  act  of  his  own.  The  sureties  are  severally  liable,  and  are 
severally  entitled  to  the  protection  of  the  statute  of  limitation." 

§  92.  Disability  of  Principal. — As  a  general  rule,  whenever 
the  principal  is  discharged,  his  surety  will  be  relieved  of  liability 
also.  To  this  rule,  however,  there  are  exceptions.  Thus,  in  some 
States,  a  note  by  a  married  woman  is  void.  But  her  surety,  in 
the  absence  of  fraud,  is  liable  on  the  note,  notwithstanding  her 
discharge.^"  If  the  payee  is  ignorant  of  the  insanity  of  the  prin- 
cipal on  a  note,  such  insanity  will  discharge  the  principal,  but  not 
the  surety."    And  sureties  cannot  plead  infancy  of  the  principal.^' 

47.  Connecticut, — Caldwell  y.  Sig-  50.  Indiana. — Davis  v.  Stotts,  4S 
ourney,  19  Conn.  37.  Ind.  103. 

Maine. — Pike   v.   Warren,   15   Me.  lorra. — Allen  t.  Berryhill,  27  Iowa 

390.  531;    Jones   v.   Crothwaite,   17   Iowa 

Massachusetts. — Hunt     v.     Bridg-  393. 

ham,  2  Pick.  581.  Mississippi— Whitworth  v.  Carter, 

Missouri. — Block    v.    Dorman,    51  43  Miss.  61. 

Mo.  31.  MissourL — Lobaugh  v.  Thompson, 

New  Jersey. — Corliss   v.  Fleming,  74  Mo.  600. 

30  N.  J.  L.  349;  Disbrough  v.  Bide-  New  Jersey. — Wagoner  v.  Watts, 

man,  20  N.  J.  L.  275.  44  N.  J.  L.  126. 

Rhode    Island.— Perkins    v.    Bar-  New  York.— Kimball  v.  Newell,  7 

Btown,  6  R.  I.  505.  Hill  (N.  Y.)  116. 

Vermont. — Whitlock    v.    Doolittle,  51.  Lee  v.  Yandell,  69  Tex.  34,  6 

18  Vt.  440.  S.  W.  665. 

48.  Bottles  V.  Miller,  112  Ind.  584;  52.  President  and  Fellows  of  Har- 
Mozingo  V.  Ross,  150  Ind.  688,  50  N.  vard  College  v.  Kempner,  131  App. 
E.  867.  Dlv.  (N.  Y.)  848,  116  N.  Y.  Supp.  437. 

49.  Davis  v.  Clark,  58  Kan.  454,  49 
Pac.  665. 


107  StooPE  OF  Surety  Conteact.  §  93 

Nor  is  the  surety's  liability  tested  by  determining  whether  he 
can  recover  indemnity  from  his  principal.  When  the  contract  is 
valid  in  its  inception,  the  principal  debtor  may  be  discharged  by 
•operation  of  law  without  discharging  the  surety,  where  the  cred- 
itor does  not  by  his  acts  contribute  to  the  release.  Thus,  a  dis- 
charge of  the  principal  in  bankruptcy  does  not  discharge  the 
surety. ^^  And  where  a  married  woman's  note  is  void,  she  may 
buy  real  estate  and  give  her  note  signed  by  sureties  for  the  pur- 
chase price,  and  the  sureties  only  will  be  held,  though  the  title  to 
the  real  estate  passes  to  the  woman." 

So  a  surety  signing  a  partnership  note  is  bound,  though  the 
note  was  executed  by  one  of  the  partners  without  authority.^' 
And  sureties  cannot  escape  liability  on  the  ground  that  the  obligee, 
a  foreign  corporation,  is  not  registered  in  the  state,  as  required  by 
the  general  Corporation  Law."  Where  a  note  is  procured  by 
<luress  in  violation  of  law,  and  contrary  to  pulblic  policy,  morality 
and  justice,  then  the  surety  is  not  liable  further  than  the  princi- 
pal, and  whatever  discharges  the  principal  frees  the  surety  from 
liability." 

§  93-  Conflict  of  Laws. — Suretyship,  like  other  contracts,  is 
governed  by  the  law  of  the  place  where  made.  Thus,  a  note  made 
and  payable  in  a  State,  signed  by  a  surety,  will  be  governed  by  the 
law  of  that  iState ;  and  so  the  law  of  that  State  relating  to  sureties 
applies  in  a  suit  in  another  iState.^*  And  so  if  the  note  would  be 
invalid  if  made  in  the  'State  where  enforced,  yet  if  valid  in  the 
State  where  made  the  court  will  apply  the  law  of  the  State  where 
executed." 

But  where  a  contract  is  made  relating  to  the  title  of  real  estate, 

68,  Guild  V.  Butler,  122  Mass.  498;  6«.  President  and  Fellows  of  Har- 

Lackey  v.  Steere,  121  111.  598,  13  N.  vard  College  v.  Kempner,  131  App. 

E.  318;  Ellis  v.  Wilmot,  10  Exch.  10.  Div.  (N.  Y.)  848,  116  N.  Y.  Supp.  437. 

64.  Foxworth  v.  Bullock,  44  Miss.  67.  Osborn  v.  Robbins,  36  N.  Y,  365. 
457.  68.  Howard  v.  Fletcher,  59  N.  H. 

See,  also,  Wiggins  Appeal,  Winn  151, 

-V.  Sandford,  145  Mass.  302,  14  N.  E.  See  Pugh  v.  Cameron's  Adm'r.  11 

103;   Yales  v.  Wheelock,   109  Mass.  W.  Va.  523. 

502;  Patterson  v.  Cone,  61  Mo.  439;  59.  Long    v.    Templeman,    24    La. 

Wiggins,  100  Pa.  St.  155.  Ann.  564;  Milliken  v,  Pratt,  125  Mass. 

65.  Stewart    v.    Baehm,    2    Watts.  374. 
<Pa.)  356. 


§  93  Suretyship  and  Guaranty.  108- 

that  is  diifcrent.  The  general  principle  of  the  common  law  is  that 
the  law  of  the  place  where  real  estate  is  situated  exclusively  gov- 
erns, in  respect  to  the  right  of  the  parties,  the  transfer  and  solem- 
nities which  must  accompany  them.  Hence,  a  promissory  note 
made  by  a  wife  as  surety  for  her  husband,  in  a  State,  where  she 
resides,  although  void  there  by  the  law  of  that  State,  can  be  en- 
forced against  her  separate  estate  in  land  in  another  State  where 
she  would  have  a  right  so  to  contract,  when  she  contracted  with 
reference  to  such  separate  estate  and  intended  to  charge  it  with 
her  debt.''^ 

60.  Frierson  v.  ■Williams,  57  Miss.  451. 


1091  DiSCHAKGE    OF    SuRETY. 


CHAPTER   V. 

DISCHARGE  OF  SURETY. 

Section    93a.  Discharge  of   Surety  Generally. 

94.  Payment  of  Debt  Discharges  Surety. 

95.  What  Acts  of  Principal  Will  Discharge  the  Surety  After 

Judgment. 

96.  Legality  of  Payment. 

97.  Application  of  Payments. 

98.  Application  by  Law. 

99.  Note  Payable  to  a  Bank  —  Application  of  Debtor's  Deposit. 

100.  Change  in  the  Principal  Contract. 

101.  Where  the  Surety  is  not  Discharged  by  Change  of  Contract. 

102.  Alteration  of  the  Instrument. 

103.  Material  Alteration  of  Instrument. 

104.  Commercial  Instruments. 

105.  Change  of  Date. 

106.  Alteration  of  Amount. 

107.  Alteration  of  the  Rate  of  Interest. 

108.  Changing  the  Place  of  Payment. 

109.  Destroying  the  Identity  of  the  Contract. 

110.  Addition  of  Surety  to  a  Note. 

111.  Changing  the  Covenants  of  a  Lease  Signed  by  Surety. 

112.  Building  Contracts. 

112a.  Building  Contracts  —  Surety  Released  by  Change  of. 

112b.  Building  Contracts  —  Where  Change  Authorized. 

112c.  Building  Contracts  —  Permissive  and  Immaterial  Devia- 
tions. 

112d.  Building  Contracts  —  Payment  —  Certificate  of  Architect  or 
Other  Person. 

112e.  Building  Contracts  —  Payment  Generally. 

112f .  Building  Contracts  —  Acceptance  by  Architect  —  Certifi- 
cate. 

113.  Extension  of  Time  of  Payment. 

113a.  Extension  of  Time  of  Payment  —  Where  Instrument  Pro- 
vides for. 

113b.  Extension  of  Time  of  Payment  —  Evidence  —  Burden  of 
Proof. 

114.  Consideration. 

115.  Effect  on  Surety's  Contract  by  Taking  Usury  for  Extension. 

116.  Effect  of  Creditor's  Reservation  of  His  Remedies  Against 

Surety. 

117.  Extension  with  Consent  of  Surety. 

118.  Waiver  of  Discharge. 

119.  Extension  Must  Be  for  a  Time  Certain. 


§  93a  Suretyship  and  Guaranty.  110 

Section  120.  Giving  Time  to  One  or  Two  or  More  Sureties. 

121.  "What  is  a  Promise  of  Extension. 

122.  Accepting  New  Note. 

123.  Taking  Collateral  Security. 

124.  Personal  Judgment  for  Deficiency  in  Foreclosure  Proceed- 

ings. 

125.  Fraud  —  Extension  of  Time. 

126.  Fraud  to  Induce  Surety  to  Sign  Contract. 

127.  Notice  to  Creditor  of  Principal  Debtor's  Dishonesty. 

128.  Negligence   of   Creditor   in   Not   Availing   Himself   of   the 

Debtor's  Means. 

129.  Surety  Signing  Upon  Condition. 

130.  Surrendering  Security. 

131.  Taking  Property  by  Attachment  and  Execution. 

132.  Failure  to  Apply  Securities. 

133.  Release  of  Co-surety. 

134.  Failure  of  Creditor  to  Sue  Principal. 

135.  Disaffirmance  of  Contract  by  Principal. 

136.  Fraud  Upon  the  Principal. 

137.  Substitution  of  Securities. 

138.  Payment  of  Consideration  in  Installments  —  Building  Con- 

tracts. 

139.  Tender  of  Payment, 

Sec.  93a.  Discharge  of  Surety  Generally. — When  a  principal 
discharges  his  full  obligation  his  surety  is  also  discharged.^ 

And  in  general  any  act  of  the  creditor  done  without  the  surety's 
assent  and  by  which  the  latter  is  exposed  to  greater  liability  or 
his  risk  increased  will  operate  as  a  discharge.  "  The  general  rule 
is  that  a  surety  who  has  entered  into  his  contract  under  an  agree- 
ment providing  for  a  security  for  himself,  and  has  annexed  condi- 
tions, failure  of  the  creditor  to  comply  with  the  agreement,  or 

1.  City  of  New  York  v.  Seely-Tay-  of  contracting  a  surety  for  him  is  not 

lor  Co.,  149  App.  Div.  (N.  Y.)  98,  133  released  because  of  such  incapacity. 

N.  Y.  Supp.  808.  Gates  v.  Tebbetts,  83  Neb.   573,  119 

Release    of    principal    discharges  N.  W.  1120,  20  L.  R.  A.  (N.  S.)  1000. 

snrety.     Brown  v.  Vermont  Mutual  See,  also,  §  92  herein. 

Fire  Ins.  Co.,  83  Vt.  161,  74  Atl.  1061;  Where  statute  provides  manner  of 

Brown  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  discharge  of  negotiable  instruments 

76  Neb.   792,  107  N.  W.   1024;    Long  those  primarily  responsible  are  not 

V.    Patton,    43    Tex.    Civ.    App.    111.  released    by    a    discharge    in    some 

Compare  Wheeler  v.  Werner,  140  other  manner.     Richards  v.  Market 

App.  Div.  (N.  Y.)  695,  125  N.  Y.  Supp.  Exch.  Bank  Co.,  81  Ohio  St.  348,  90 

637.  affirming  121  N.  Y.  Supp.  681.  N.  E.  1000. 

Where  the  principal  is  incapable 


nil 


Discharge  of  Surety. 


§  94 


disregard  of  sucli  conditions  without  his   consent,   releases  the 
surety."  ^ 

§  94.  Pa3mient  of  Debt  Discharges  the  Surety. — Payment  of 
the  debt  by  the  principal  discharges  the  surety.'  Whenever  the 
principal  debtor  is  released  the  surety  or  co-sureties  are  also  dis- 
charged, and  it  is  immaterial  by  whom  the  debt  is  paid.*  Thus, 
if  the  creditor  receives  money  from  the  principal  as  payment,  the 
surety  is  discharged,  although  the  money  was  that  of  a  third 
party  who  had  made  the  principal  his  agent  to  huy  the  note  and 


2.  Reeves  v.  Jowell  (Tex.  Civ,  App. 
1911),  140  S.  W.  364,  per  Hall,  J. 

See,  also,  following  cases: 

Georgia. — Wilkinson  v.  Conley,  133 
Ga.  518,  66  S.  E.  372;  Deariso  v. 
First  National  Bank,  7  Ga.  App.  841, 
€8  S.  E.  449;  Hancock  v.  Bank  of 
Tipton,  6  Ga.  App.  678,  65  S.  E.  784. 

Minnesota. — Bandler  v.  Bradley, 
110  Minn.  66,  124  N.  W.  644. 

Missonri. — Harris  v.  Taylor  (Mo. 
App.  1910),  129  S.  W.  995. 

Pennsylvania. — Banschard  Co.  v. 
Fidelity  &  Casualty  Co.,  21  Pa.  Super. 
Ct.  370. 

Vermont. — Brown  v.  Vermont  Mu- 
tual Fire  Ins.  Co.,  83  Vt.  161,  74  Atl. 
1061. 

Released  to  extent  of  injury  sus- 
tained. Vanderbeek  v.  Tierney-Con- 
nelly  Const.  Co.,  77  N.  J.  L.  664,  73 
Atl.  480. 

See,  also,  Revel  Realty  &  Securi- 
ties Co.  V.  Maxwell,  65  Misc.  R.  (N. 
Y.)  54,  119  N.  Y.  Supp.  257. 

Rnle  in  case  of  compensated 
Borety,  see  Black  Masonry  &  Con- 
Btruction  Co.  v.  National  Surety  Co. 
(Wash.  1911),  112  Pac.  517. 

Injury  not  test  of  discliarge  of 
surety.  See  Guardian's  Trust  Co.  v. 
Peabody,  195  N.  Y.  544,  88  N.  E.  1120, 
affirming  judgment  122  App.  Div.  648, 
107  N.  Y.  Supp.  515. 

Failure  to  enforce  performance  of 


provisions  of  mortgage  given  to  se- 
cure a  debt  held  not  to  discharge 
surety.  Berman  v.  Elm  Loan  &  Sav- 
ings Co.,  114  Md.  191,  78  Atl.  1104. 

Mere  laches  held  not  to  discharge 
surety.  City  of  Syracuse  v.  Roscoe, 
66  Misc.  R.  (N.  Y.)  317,  123  N.  Y. 
Supp.   403. 

See  §§  128,  132,  134  herein,  as  to 
negligence  and  laches. 

3.  Chapman  v.  Collins,  12  Cush. 
(Mass.)  163;  Walker  v.  Archer 
128  Mich.  603,  87  N.  W.  754,  8  Det. 
Leg.  N.  787;  Coots  v.  Farnsworth, 
61  Mich.  497,  28  N.  W.  534. 

Compare  Swarts  v.  Fourth  Nat. 
Bank,  117  Fed.  1,  54  C.  C.  A.  387,  in 
case  of  payment  by  an  insolvent 
debtor. 

A  statement  by  the  principal  that 
his  obligation  has  been  satisfied  by 
him  will  not  justify  reliance  thereon 
by  a  surety.  Reints  v.  Uhlenhopp, 
149  Iowa  429,  128  N.  W.  400. 

Where  work  has  been  accepted 
and  paid  for  in  ignorance  of  the 
fact  that  it  was  not  done  as  provided 
for  In  the  contract,  and  it  was  de- 
fective, a  surety  against  work  of 
this  character  was  held  not  to  be 
discharged.  City  of  Newark  v.  New 
Jersey  Asphalt  Co.,  68  N.  J.  L.  458,  53 
Atl.  294. 

4.  Crawford  v.  Beall,  21  Md.  208. 


^  i>5 


Suretyship  and  Guaranty. 


112 


not  to  pay  it/'  When  the  liability  of  the  principal  in  a  note  is 
discharged  by  payment,  the  liability  of  the  surety  is  also  extin- 
guished f  and  the  liability  of  the  surety  cannot  exceed  that  of  his 
principal/  except  a  discharge  of  the  principal  in  a  bond  by  oper- 
ation of  law  does  not  discharge  the  surety/ 


55  95.  What  Acts  of  Principal  Will  Discharge  the  Surety  After 
Judgment. — Whatever  acts  will  discharge  a  surety  before  judg- 
ment, while  the  obligation  is  only  one  of  contract,  will  have  the 
same  effect  after  judgment.  Such  rule  is  to  prevent  wrong  and 
injury  and  protects  the  surety  under  his  just  right  to  look  to  his 
principal  for  indemnity  when  he  is  damnified  by  his  undertaking ; 
and  it  prevents  the  creditor  from  discharging  the  principal  and 
imposing  the  entire  burden  upon  the  surety  without  means  of  re- 
dress/ However,  there  are  cases  to  the  contrary,  though  against 
the  weight  of  authority,  which  hold  that  after  the  contract  has 
been  reduced  to  judgment,  the  equity  of  the  surety  terminates 
with  regard  to  the  creditor,  and  the  prior  obligation  is  merged 
in  the  new  one  created  by  law,  and  the  surety  becomes  a  principal 
and  is  bound  for  the  debt  irrespective  of  what  his  principal  and 
creditor  may  do.  These  cases  go  upon  the  ground  that  such 
equities  cannot  be  shown,  neither  when  the  contract  is  under  seal 
nor  when  it  has  been  reduced  to  judgment.^* 


5.  Eastman  v.  Plumer,  32  N.  H. 
238. 

6.  Petefish  v.  Watkins,  124  111. 
384,  16  N.  E.  248. 

7.  United  States  v.  Allsburg,  4 
Wall.  (U.  S.)  186,  18  L.  Ed.  321. 

8.  Phillips  V.  Solomon,  42  Ga.  192; 
Whereatt  v.  Ellis,  103  Wis.  348,  79 
N.  W.  416. 

9.  Illinois.— Trotter  v.  Strong,  63 
111.  272;  New  York  Bank  Note  Co.  v. 
Kerr,  77  111.  App.  53. 

Iowa. — Ames  v.  Maclay,  14  Iowa 
281. 

Louisiana. — Gustine  v.  Bank,  10 
Rob.  (La.)  412. 

Maryland. — Keigler  v.  Savage  Mfg. 
Co.,  12  Md.  383. 


Massachusetts.  —  Carpenter  v. 
King,  9  Mete.  511. 

New  York. — Bangs  v.  Strong,  10 
Paige  11,  7  Hill  520;  Boughton  v. 
Bank,  2  Barb.  Ch.  458. 

Peuusjivania. — Commonwealth  v. 
Miller,  8  Serg.  &  R.  452;  Talmadge 
V.  Burlingham,  5  Pa.  St.  21;  Potts  v. 
Nothaus,  1  Watt.  &  S.  155. 

10.  Lenox  v.  Prout,  3  Wheat.  (U. 
S.)  520,  4  L.  Ed.  449;  Findley  v.  Bank, 

2  McLean  44;  Lafarge  v.  Dillenback, 

3  Denio  (N.  Y.)  157;  Bay  v.  Tall- 
madge,  5  Johns.  Ch.  (N.  Y.)  305; 
Pole  V.  Ford,  2  Chit.  125. 

Purchase  of  property  on  which 
judgment  was  a  lien,  not  a  release, 
of  surety.  George  v.  Crim,  66  W.  Va. 
421,  66  S.  E.  526. 


113  Discharge  of  Surety.  §§  96,  97 

§  96.  Legiality  of  Payment. — A  payment  may  be  illegal ;  if 
illegal,  and  the  creditor  is  compelled  to  pay  over  the  money  re- 
ceived to  those  who  are  legally  entitled  to  it,  then  the  surety  will 
not  be  discharged.  The  act  of  the  creditor  which  discharges  the 
surety  must  be  an  act  involving  something  inequitable  at  the  time 
it  is  done,  and  which  interferes  with  the  right  of  the  surety.  So 
where  the  creditor  has  received  money  in  pa^Txient  which  belongs 
to  other  parties,  and  which  they  can  and  do  legally  claim,  that  is 
no  payment,  and  the  surety  is  not  discharged  if  the  money  is 
reclaimed.^^ 

However,  if  a  third  party  wishes  to  buy  the  note  and  makes 
the  principal  his  agent,  he  will  be  bound  by  his  agent's  acts.  Thus, 
if  a  third  party  gives  money  to  the  principal  to  buy  the  note  for 
him,  but  the  principal  pays  the  note,  and  the  creditor  receives  it 
in  good  faith,  it  is  a  payment,  and  the  surety  is  discharged.^^ 
But  if  the  money  had  been  raised  by  the  debtor  by  aid  of  the 
indorsement  of  the  surety,  given  for  the  express  purpose  of  en- 
abling the  debtor  to  raise  fimds  to  pay  the  secured  debt,  and  this 
fact  is  communicated  to  the  creditor,  then  he  must  apply  it  as 
the  surety  directed.  But  if  the  creditor  is  not  informed  of  the 
intention  of  the  surety,  then  he  can  make  his  own  application." 

§  97.  Application  of  Payments. — The  rule  in  regard  to  the  ap- 
plication of  payments  is  this:  (1)  The  debtor  at  the  time  of 
payment  has  a  right  to  designate  the  claim  to  which  it  shall  apply. 
(2)  If  the  debtor  fails  to  make  the  application  when  he  has  the 
opportunity  of  so  doing,  the  creditor  may  apply  the  payment  to 
any  of  several  legal  claims  at  his  option.   (3)  If  neither  debtor  nor 

Right  of  judgment  crditor  as  to  A  judgment  in  favor  of  the  prin- 

pnrsuit  of  remedies  where  there  are  cipal  held  to  release  a  surety  against 

several  judgments.   Pursuit  of  reme-  whom   a   prior  judgment   had   been 

dies  on  some  judgments  which  are  recovered.     Stolze  v.  United  States 

not  secured  held  not  to  release  sure-  Fidelity  &  Guarantee  Co.  (Mo.  App. 

ties  on  other  judgments.    George  v.  1910),  131  S.  W.  915. 

Crim,  66  W.  Va.  421,  66  S.  E.  526.  11.  Petty  v.  Cooke,  L.  R.  6  Q.  B. 

A  judgment  which  has  not  been  789. 

satisfied   against  the  principal   will  12,  Eastman  v.  Plumer,  32  N.  H. 

not    prevent    a    recovery    from    the  238. 

surety.    McPharlin  v.  Fidelity  &  De-  13.  Harding  v.  TifEt,  75  N.  Y.  461. 
posit  Co.  of  Maryland,  162  Mich.  141. 
127  N.  W.  307. 
8 


§  97'  Suretyship  and  Guaranty.  114: 

creditor  makes  the  application  the  law  itself  will  apply  the  pay- 
ment as  justice  and  equity  require."  As  to  a  surety,  this  doc- 
trine applies  when  the  principal  makes  the  payment  from  funda 
which  are  his  own  free  from  any  equity  in  favor  of  the  surety. 
Thus,  where  the  specific  money  paid  to  the  creditor  and  applied 
to  a  debt  of  the  principal  for  which  the  surety  is  not  bound,  is 
the  very  money  for  the  collection  and  payment  of  which  he  is 
surety,  he  is  not  bound  by  such  application,  and  can  have  it  ap- 
plied to  the  debt  for  which  he  is  surety.^^  Whenever  justice  and 
equity  show  that  the  surety  has  rights  in  the  application  of  the 
money,  it  must  he  applied  at  his  command.^®  Thus,  a  surety  on 
a  contract  to  secure  a  bank  against  loss  on  future  overdrafts  by 
the  principal  debtor,  has  an  interest  in  such  principal's  account,, 
and  is  entitled  to  have  payment  applied  upon  the  account  guaran- 
teed/^ The  civil  law  will  apply  payments  to  the  unsecured  debts, 
in  preference  to  secured  debts,  except  when  the  latter  are  secured 
by  a  surety,  in  which  case  the  application  will  be  made  to  the 
surety's  relief.^*  At  common  law  the  application  must  be  made 
in  the  interest  of  the  creditor  to  the  most  precarious  debt.^* 

In  some  jurisdictions  the  rule  is  that  the  application  must  be 
made  to  the  most  precarious  security  whenever  the  interest  of 
the  creditor  requires  it,  but  not  to  the  prejudice  of  the  surety, 
who  may  insist  on  an  appropriation  to  the  oldest  debt,  and  hold 
himself  bound  or  discharged  accordingly.^" 

The  fact  that  the  payee  of  a  note  who  is  also  the  payee  in  notes 
of  a  later  date  executed  by  the  same  maker  does  not  apply  a  pay- 
ment by  the  maker,  who  gives  no  direction  as  to  its  application,  tO' 

14.  Koch  V.  Roth,  150  111.  212,  37  229;  Marryatt  v.  White,  2  Starki© 
N.  E.  317.  101. 

15.  Merchants'  Ins.  Co.  v.  Herber,  19.  Field  v.  Holland,  6  Cr.  (U.  S.) 
68  Me.  420.  8,  3   L.  Ed.   136;    Stamford  Bank  v. 

16.  Hansen  v.  Rounsvaille,  74  111.  Benedict,  15  Conn.  437;  Mathews  v.. 
238.  Switzler,    46    Mo.    301;    Morrison    v. 

17.  Drake  v.  Sherman,  179  111.  362,  Citizens'  Nat.  Bank,  65  N.  H.  253,  20 
53  N.  E.  628.  Atl.  300. 

See,  also.  Crossly  v.  Stanley  20.  Pardee  v.  Markle,  11  Pa.  St. 
112  Iowa  24,  83  N.  W.  806.  555 ;    Berghaus    v.    Alter,    9    Watts. 

18.  Brendenbecker    v.    Lowell,    32    (Pa.)  386, 

Barb.  (N.  Y.)  23  Pattison  v.  Hall,  3  See,  also,  Crasser  &  Brand  Brew- 
Cow.  (N.  Y.)  747;  Blackmore  v.  ing  Co.  v.  Rogers,  112  Mich.  112,  70* 
Granbury,  98   Tenn.   277,   39   S.   W.   N.  W.  445. 


115  Discharge  of  Surety.  §§  98,  99 

the  note  first  executed  does  not  release  the  surety  on  such  note 
from  liability.^^ 

§  g8.  Application  by  Law. — In  the  absence  of  any  direction 
by  the  debtor,  and  the  creditor  has  made  no  application  of  pay- 
ment, then  the  law  steps  in  and  makes  the  application.  The  law- 
will  apply  the  payment  to  the  oldest  item  of  indebtedness  in  the 
absence  of  any  circumstance  which  will  render  such  application 
unjust  to  third  parties.^^ 

As  a  general  rule  a  debtor  has  a  right  to  appropriate  payments. 
If  he  does  not,  the  creditor  may.  If  neither  does  the  jury  will 
make  the  application  under  the  direction  of  the  court.^^  And  so 
where  a  payment  has  been  properly  applied  upon  a  particular 
note,  it  instantly  extinguishes  to  the  extent  of  that  payment;  and 
the  note  being  made  by  several,  it  cannot  be  revived  against  any 
of  the  parties  without  the  consent  of  all.  An  attempt  thus  to  re- 
vive an  extinguished  liability  would  be  fraud  upon  the  surety/* 

§  99.  Note  Payable  to  a  Bank — Application  of  Debtor's  De- 
posit.— The  fact  that  the  principal  debtor  in  a  note  payable  to  a 
bank,  has  funds  on  deposit  in  the  bank  after  the  maturity  of  the 
note,  and  before  suit  on  the  note,  exceeding  the  sum  due  thereon, 
and  the  bank  does  not  appropriate  the  same  to  its  payment,  does 
not  discharge  the  surety.^^  It  is  at  the  election  of  the  bank  alone 
to  apply  such  funds  to  the  payment  of  the  note,  and  the  surety 
cannot  complain  if  the  deposit  is  not  so  applied.^® 

21.  Baumgartner  v.  McKinnon  v.  Peck,  127  Mass.  298;  Houston  v. 
(Ga.  App.  1912),  73  S.  E.  518.  Braden    (Tex.  Civ.  App.),  37   S.  W. 

22.  Frost  V.  Mixsell,  38  N.  J.  Eq.    467. 

586;  Toulmin  v.  Copland,  2  CI.  &  F.  26.  Arkansas. — Compare     Dawson 

681;  Mills  v.  Fowkes,  5  Bing.  (N.  C.)  v.  Bank,  5  Pike  283,  298. 

455.  Delaware. — Compare  McDowell  v. 

23.  Baumgartner      v.      McKinnon  Bank,  1  Harr.  (Del.)   369. 

(Ga.  App.  1912),  73  S.  E.  518,  citing  Maryland.— Martin  v.  Bank,  6  Har. 

Newton  v.  Mennally,  4  Ga.  357.  &  Johns.  (Md.)  235. 

24.  Miller  v.  Montgomery,  31  111.  New  York. — Newburgh  Bank  v. 
350.  Smith,  66  N.  Y.  271. 

25.  Voss    V.    Bank,    83    111.    599 ;  England.— Clayton's  Case,  1  Meriv. 
Highland      Park      State     Bank     v.  572;  Strong  v.  Foster,  17  C.  B.  207; 
Sheahen,  149  111.  App.  225;  Citizens'  Pemberton   v.  Oakes,   4   Russ.   154; 
Bank  v.  Elliott,  9  Kan.  App.  797,  59  Law  v.  East  India  Co.,  4  Ves.  824. 
Pfc.   1102;    National   Machine  Bank 


§100  SUKETYSHIP   AND   GUARANTY.  IIC 

Of  course,  when  the  principal  creditor  has  means  of  satisfac- 
tion actually  or  potentially  within  his  control,  he  must  retain 
them  for  the  benefit  of  the  surety ;  but  this  rule  does  not  apply  to 
deposits  in  a  bank.  Because  without  an  express  agreement  or  di- 
rection, it  is  optional  with  the  bank  whether  or  not  it  will  apply 
the  money  thus  on  deposit  in  payment  of  the  note." 

But  where  money  was  deposited  with  a  bank  under  an  agree- 
ment that  it  should  be  paid  only  to  certain  creditors  the  bank  can- 
not apply  it  to  the  payment  of  a  note  which  is  not  one  of  the  desig- 
nated debts  and  its  not  so  applying  it  does  not  release  a  surety  on 
the  note.^* 

It  is  held  in  Indiana  that  a  bank  has  no  right  without  the 
depositor's  consent  to  apply  money  due  him  as  depositor  to  the 
payment  of  a  note  held  by  it  upon  which  it  is  liable  as  surety;^* 
but  this  rule  does  not  apply  in  Pennsylvania,  and  the  bank  can 
apply  it  to  the  payment  of  such  note.^" 

§  100.  Change  in  the  Principal  Contract. — It  is  the  general 
rule  that  any  agreement  between  the  principal  and  the  obligee  or 
payee  essentially  varying  the  terms  of  the  contract,  by  which  the 
surety  is  bomid,  without  the  latter's  consent,  will  release  him  from 
responsibility.^^  Thus,  a  surety  for  a  partnership  which  is  to  con- 
tinue for  a  specified  period,  is  discharged  if  the  partnership  is 

27.  Newburgh  Bank  v.  Smith,  66  California. — Deming  v.  Maas  (Cal. 
N.  Y.  271;  People's  Bank  V.  Legrand,  App.  1912),  123  Pac.  204;  Barrett- 
103  Pa.  St.  309.  Hicks  Co.  v.  Glas,  9  Cal.  App.  491,  99 

28.  Royse  v.  Winchester  Bank  (Ky.  Pac.  8.56. 

C.  A.  1912),  146  S.  W.  738.  District  of   Columbia.  —  Catholic 

29.  Lamb  v.  Morris  (Harrison  v.  University  of  America  v.  Morse,  32 
Morrison),  118  Ind.  179,  20  N.  E.  746.  App.  D.  C.  195. 

30.  Lancaster  First  Nat.  Bank  v.  Georgria. — Haigler  v.  Adams,  5  Ga. 
Shreiner,  110  Pa.  St.  188,  20  Atl.  718.  App.  637,  63  S.  E.  715. 

31.  United  States. — McMuUen  v.  Illinois. — IMcCartney  v.  Ridgway, 
United  States,  167  Fed.  460,  93  C.  C.  160  111.  129;  Gardiner  v.  Harback,  21 
A.    96;     American    Bonding    Co.    v.  111.  128. 

Pueblo  Inv.  Co.,  150  Fed.  17,  80  C.  C.  Indiana,  —  Wier     Plow     Co.     v. 

A.  97;  United  States  v.  Mclntyre  (U.  Walmsley,  110  Ind.  242;  Parker  Land 

S.  C.  C),  111  Fed.  590.  &  Improvement  Co.  v.  Ayers,  43  Ind. 

Arkansas.  —  Berman     v.     Shelby  App.  513,  87  N.  E.  1062. 

(Ark.   1910),   125   S.  W.   124;    Aetna  loTva.—Bartlett  &  Kling  v.  Illinois 

Indemnity  Co.  V.  City  of  Little  Rock,  Surety  Co.    (Iowa  1909),  119  N.  W. 
89  Ark.  95,  115  S.  W.  960. 


1171 


DiSCHAKGE   OF   SuEETY. 


§   100 


continued  for  a  longer  time  than  that  prescribed  in  the  contract.'^ 
So  where  a  person  becomes  surety  for  the  payment  of  a  certain 
6um  as  alimony,  a  subsequent  increase  of  the  amount  to  be  paid 
'by  the  husband  releases  the  surety. ^^ 

(And  so  where  a  person  becomes  a  surety  on  a  contract  whereby 
the  principal  agrees  to  sell  goods  on  commission  for  the  vendor, 
which  were  to  be  shipped  as  ordered,  and  to  remit  cash  received 
on  sales  in  accordance  with  tlie  termfi  of  the  contract,  and  subse- 
quently the  contract  is  extended  so  as  to  cover  a  larger  quantity 


729;  Stillman  v.  Wickham,  106  Iowa 
597. 

Kentucky.  —  Speed  v.  Willow 
Springs  Distilling  Co.,  140  Ky.  269, 
130  S.  W.  1103. 

Massacliusetts.— Museum  of  Fine 
Arts  V.  American  Bonding  Co. 
(Mass.  1912),  97  N.  E.  633. 

Michigan. — Rodgers  Shoe  Co.  v. 
Coon,  157  Mich.  547,  122  N.  W.  133; 
Smith  V.  Sheldon,  35  Mich.  42. 

Minnesota. — Simonson  v.  Grant, 
36  Minn.  439, 

Missouri. — Warden  v.  Ryan,  37  Mo. 
App.  466. 

Montana. — Dodd  v.  Vucovich,  38 
Mont.  188,  99  Pac.  296. 

Nebraska. — First  National  Bank  v. 
Goodman,  55  Neb.  418. 

New  York. — St.  John's  College  v. 
Aetna  Indemnity  Co.,  201  N.  Y.  335, 
94  N.  E.  994,  affirming  judgment  135 
App.  Div.  480,  120  N.  Y.  Supp.  496; 
McWilliams  v.  Mason,  31  N.  Y.  294; 
Wright  Steam  Engine  Works  v.  Mc- 
Adams,  113  App.  Div.  872,  99  N.  Y. 
Supp.  577;  Hyde  v.  Miller,  45  App. 
Biv.  396.  60  N.  Y.  Supp.  974,  affirmed 
168  N.  Y.  590,  60  N.  E.  1113;  Revel 
Realty  &  Securities  Co.  v.  Maxwell, 
65  Misc.  R.  54,  119  N.  Y.  Supp.  257. 

Ohio. — Koppitz-Welchers'  Brewing 
Co.  V,  Schultz.  68  Ohio  St.  407,  67 
N.  E.  719.  Compare  Richards  v. 
Market  Exch.  Nat.  Bank,  81  Ohio  St. 


348,  90  N.  E.  1000,  holding  that  by 
statute  (Rev.  Stat,  §  3175j)  the  rule 
is  abrogated  where  cne  signs  on  face 
of  instrument.  Jones  v.  Boyd,  40 
Ohio  St.  139. 

Pennsjivania. — Young  v.  Ameri- 
can Bonding  Co.  of  Baltimore,  228 
Pa.  St.  373,  77  Atl.  623;  Whilen  v. 
Boyd,  114  Pa.  St.  22f ;  Bauschare  Co. 
V.  Fidelity  &  Casualty  Co.  of  New 
York,  21  Pa.  Super.  Ct.  370. 

Texas.— Hamblen  v.  Knight,  60 
Tex.  36;  Dearing  v.  Jordan  (Civ. 
App.  1910),  130  S.  W.  876;  Zang  v. 
Hubbard  Building  &  Realty  Co.  (Civ. 
App.  1910),  125  S.  W.  85;  Kempner 
v.  Patrick  (Civ.  App.  1906),  95  S.  W. 
51. 

Virginia. — Batchelder  v.  White,  80 
Va.  103. 

Washington.— Fransioli  v.  Thomp- 
son (Wash.  1909),  104  Pac.  278. 

Wisconsin.— Sage  v.  Strong,  40 
Wis.  575. 

Changing  building  contract,  see  §§ 
112a,  112b,  112c,  herein. 

Removal  of  business  to  another 
town  does  not  release  surety  to  con- 
tract for  sale  of  goods  to  firm. 
Rouss  V.  King,  74  S.  C,  251,  54  S.  E. 
615. 

82.  Small  v.  Currie,  5  DeG.  M.  &  G. 
141. 

33.  Sage  v.  Strong,  40  Wis,  575. 


§    101  SUKETYSIIIP  AND  GuAKANTY.  118 

of  goods  which  the  principal  had  previously  purchased  from  the 
vendor — he  is  released  from  his  liability  as  surety.^* 

In  general,  if  the  principal  does  any  act  or  makes  any  agree- 
ment for  a  valuable  consideration  without  the  consent  of  the 
surety,  express  or  implied,  and  which  tends  to  his  injury,  or  which 
suspends  the  right  to  coerce  payments  to  the  prejudice  of  the 
surety,  or  which  shall  put  the  surety  in  a  worse  condition  or  in- 
crease his  risk  or  impair  the  ultimate  liability  over  of  the  prin- 
cipal to  him,  the  surety  will  be  discharged  f^  because  he  cannot  be 
made  liable  for  any  default  in  the  performance  of  a  contract 
which  he  had  not  guaranteed.^^ 

The  test  in  determining  whether  or  not  there  has  been  a  ma- 
terial alteration  of  the  instrument  is:  Has  the  change  or  addi- 
tion injuriously  affected  the  complaining  parties,  or  could  the 
change,  under  any  possible  circumstances,  enlarge  the  burdens  al- 
ready assumed  by  them  ?  " 

§  loi.  When  the  Surety  is  not  Discharged  by  Change  of  Con- 
tract.— Some  changes  or  qualifications  of  the  original  contract 
have  no  detrimental  effect  upon  the  surety's  rights,  and  he  is  not 
djischarged.  Thus,  a  surety  is  not  discharged  by  a  contract  be- 
tween his  principal  and  their  common  dbligee  which  does  not 
place  the  surety  in  a  different  position  from  that  which  he  occu- 
pied before  the  contract  was  made.^^  And  so  a  surety  cannot  com- 
plain of  the  reduction  of  the  rent  reserved  in  a  lease  for  the  pay- 
ment of  which  he  is  liable,  though  made  without  his  knowledge ; 

84.  Wier    Plow    Co.    v.    Walmsley,  Arkansas. — Marree     v.     Ingle,     69 

110  Ind.  242,  11  N.  E.  232.  Ark.  126,  61  S.  W.  369. 

.35.  Boynton  v.  Phelps,  52  111.  210.  Maryland.— Aetna    Indemnity    Co. 

36.  Taylor  v.   Bank,   11   App.  Cas.  v.  Waters,  110  Md.  673,  73  Atl.  712. 

596.  Minnesota.— Fergus   Palls   v.    lUi- 

87.  Holthouse  v.  State  (Ind.  App.  nois  Surety  Co.  (Minn.  1910),  128  N. 

1912),  97  N.  E.  130.  W.  820. 

38.  Roach  v.  Summers,  20  Wall.  (U.  Missouri.  —  Boppart     v.     Illinois 

S.)   165,  22  L.  Ed.  252;   Whigham  v.  Surety  Co.,  140  Mo.  App.  675,  126  S. 

Hall  &  Co.,  8  Ga.  App.  509,  70  S.  E.  W.  768;   Fairbanks  Co.  v.  American 

23;    Travelers   Ins.  Co.  v.  Stiles,  82  Bonding  &  Trust  Co.,  97   Mo.  App. 

App.  Div.  (N.  Y.)  441,  81  N.  Y.  Supp.  205,  70  S.  W.  1096;  Fullerton  Lum- 

664;    Stuts   v.    Strayer,   60   Ohio   St.  ber  Co.  v.  Gates,  89  Mo.  App.  201. 

284,  54  N.  E.  368.  Washin^on. — Fransioli  v.  Thomp- 

Slight  and  immaterial   variations  son  (Wash.  1909),  104  Pac.  278. 
will  not  discharge  a  surety. 


119  DiSCHAKGE   OF   SURETY.  §    101 

it  will  not  release  him  from  his  obligation  any  more  than  if  the 
amount  of  such  reduction  had  been  indorsed  as  a  payment  upon 
the  lease.  Therefore,  a  reduction  fi'om  seventy-five  dollars  a 
month  rent  to  fifty  dollars  will  not  release  the  surety.^^  Like- 
wise, sureties  upon  a  bond  with  the  condition  that  the  principal 
shall  pay  for  all  purchases  made  by  him  from  the  obligee,  are  not 
discharged  from  liability  by  the  obligee's  taking  the  note  of  the 
principal  for  purchases  made  by  him/*^  And  where  a  surety  com- 
pany enters  into  a  contract  of  suretyship  with  a  landowner  to  se- 
cure to  him  the  payment  of  damages  resulting  from  the  taking  of 
his  land  by  a  railroad  under  right  of  eminent  domain,  the  con- 
tract stipulating  that  the  surety  company  would  pay  him,  if  the 
railroad  did  not,  the  amount  of  damages  to  which  he  might  be  en- 
titled in  consequence  of  the  location  and  construction  of  the  rail- 
road, after  said  amount  had  been  agreed  upon  by  him  and  the 
railroad  company,  or  assessed  under  the  provisions  of  the  statute, 
there  is  no  material  departure  from  the  bond  and  the  surety  com- 
pany is  liable  thereunder  where  an  agreement  is  entered  into  be- 
tween the  landowner  and  the  railroad  company  fixing  "  the  value 
of  the  land  and  the  damages  to  the  property  by  reason  of  the  lo- 
cation and  construction  of  the  railroad  through  it "  at  a  fixed  sum, 
and  providing  for  the  conveyance  of  the  land  to  the  railroad  com- 
pany in  fee/^ 

A  surety  also  will  not  be  released  by  a  change  in  the  contract 
or  mode  of  performance  which  is  permissible  under  the  terms  of 
the  obligation  as  in  such  a  case  the  surety  will  ibe  regarded  as 
having  consented  thereto.^^ 

89.  Preston     v.     Huntington,     67  Arkansas. — Marree    v.    Ingle,    69 

Mich.  139,  34  N.  W.  279.  Ark.  126,  61  S.  W.  369. 

See  Ullman  Realty  Co.  v.  Hollan-  Indiana.— Hedrick   v.  Robbins,  30 

der,  66  Misc.  R.   (N.  Y.)  348,  123  N.  Ind.  App.  595,  66  N.  E.  704. 

Y.  Supp.  772.  Iowa.— Bartlett  v.   Illinois   Surety 

See,  also,  §  111  herein.  Co.   (Iowa  1909),  119  N.  W.  729. 

40.  Parham   Sewing  Mach.  Co.   v.  Kentucky. — Illinois  Surety  Co.  t. 
Brock,  113  Mass  194.  Garrard  Hotel  Co.  (Ky.  1909),  118  S. 

41.  Brown    v.    Title    Guaranty    &  W.  967. 

Surety  Co.,  232  Pa.  St.  337,  81  Atl.        Minnesota.— Fergus   Falls   v.   Illi- 
410.  nois    Surety    Co.    (Minn.    1910),    128 

42.  United     States.— McMuUen    v.    N.  W.  820. 

United  States,  167  Fed.  460,  93  C.  C.       Missonri.— Utter&on      v.      Elmore 
A.  96.  (Mo.  App.  1911),  136  S.  W.  9;  Reis- 


§  102  Suretyship  and  Guaranty.  120 

§  102.  Alteration  of  the  Instrument. — Upon  the  question  of 
the  alteration  of  the  instrument,  there  is  a  conflict  of  authority, 
and  two  distinct  lines  of  decisions:  (1)  The  earlier  ruling  of 
the  courts  seems  to  hold  that  any  alteration  of  a  contract,  how- 
ever immaterial,  after  its  execution  in  the  absence  of  the  other 
party,  avoided  it.''^  (a)  Because  the  alteration  must  affect  the 
question  of  the  identity  of  the  instrument,  (b)  Because  such  an 
unauthorized  act  of  a  party  having  the  custody  of  a  deed  should 
be  construed  most  strongly  against  himself,  and  if  legalized  might 
facilitate  injury  and  irremediable  fraud/'*  (2)  The  other  line 
of  cases  holds  that  a  mere  alteration  of  an  instrument,  without 
affecting  the  legality  of  the  contract  or  any  of  the  parties  thereto, 
does  not  render  it  invalid ;  that  the  question  must  be  settled  upon 
the  ground  of  justice  and  common  sense,  and  not  upon  technical 
quibbling,  by  which  it  has  been  held  that  sureties  have  been  dis- 
charged/* 

So  under  the  old  rule  any  change  in  the  contract  made  without 
the  surety's  consent  discharged  him,  though  such  change  is  for  his 
benefit/^  So  it  is  not  sufficient  to  uphold  the  contract  after  its 
alteration,  however  slight,  and  even  if  the  change  inures  to  the 
surety's  benefit/^    This  is  the  common  law  rule.     But  the  weight 

Bans  V.  Whites,  128  Mo.  App.  135,  106  44.  Johnson    v.    Bank,    2    B.    Mon. 

S.  W.  603;  Barnes'  Estate  v.  Fidelity  (Ky.)  311. 

&  Deposit  Co.,  96  Mo.  App.  467,  70  45.  United  States.— Smith  v.  United 

S.  W.  518;  Fullerton  Lumber  Co.  v.  States,  2  Wall.  (U.  S.)  219,  17  L.  Ed. 

Gates,  89  Mo.  App.  201.  788. 

New  York. — Travelers  Ins.  Co.  v.  Illinois. — Ganey   v.   Hohlman,   145 

Stiles,    82    App.    Div.    441,    81    N.   Y.  111.  App.  467. 

Supp.  664.  Maryland. — Wehr  v.  German  Con- 
Oregon. — Enterprise   Hotel   Co.   v.  gregation,  47  Md.  177. 

Hook,  48  Ore.  58,  85  Pac.  333.  Massachnsetts.— Bank     v.      Hyde, 

Washington. — Keenan    v.    Empire  131  Mass.  77. 

State  Surety  Co.,  62  Wash.  250,  113  Pennsylvania.  —  Kaufmann        v. 

Pac.  636.  Rowan,  189  Pa.  St.  121,  42  Atl.  25. 

Failure    to    sign    changes    which  46.  Dey  v.  Martin,  78  Va.  1;  Chris- 
have  been  endorsed  as  required  by  tian  v.  Keen,  80  Va.  369. 

the  contract  does  not  discharge  the  47.  Miller  v.  Stewart,  9  Wheat.  (U. 

sureties.       Illinois     Surety     Co.     v.  S.)  681,  6  L.  Ed.  189;  Reese  v.  United 

Ganard    Hotel    Co.    (Ky.    1909),    118  States,    9    Wall.    (U.    S.)    13,    19    L. 

S.  W.  967.  Ed.    541;    United    States    Glass    Co. 

43.  Pigofs  Case,  11  Coke  27.  v.  Bottle  Co.,  89  Fed.  993;   State  ex 

rel.   Jackson   County   v.   Chick,   146 


121  Discharge  of  Surety.  §  lOS 

of  authority  is  that  any  alteration  which  does  not  destroy  the 
identity  of  the  written  contract,  nor  in  any  manner  affect  the  lia- 
bility of  the  surety,  is  not  such  an  alteration  as  will  release  the 
surety/^ 

The  mere  fact  of  the  erasure  of  the  name  of  one  of  the  sure- 
ties will  not  put  the  payee  upon  notice  that  such  erasure  had  been 
made  without  the  consent  of  the  other  sureties  and  release  them 
from  liability/^ 

§  103.  Material  Alteration  of  Instrument. — It  is  now  the  rule 
in  both  England  and  in  the  United  States  that  a  material  altera- 
tion without  the  consent  of  the  parties  sought  to  be  charged,  ex- 
tinguishes their  liability.^*^  A  surety  is  bound  in  the  manner 
and  to  the  extent  provided  in  the  obligation  executed  by  him, 
and  no  further.  He  may  stand  upon  its  terms  and  any  material 
alteration  of  the  instrument  without  his  consent  discharges  him.^^ 
Thus,  where  a  building  is  being  erected  for  a  party  who  is  to 
pay  in  installments  as  the  building  progresses  toward  completion, 
and  an  installment  is  paid  in  advance  to  the  contractor,  who  is 
under  a  bond,  such  payment  in  advance  discharges  the  sureties 
on  the  bond.^^    Because  in  such  case  the  surety  may  be  deprived 

Mo.   645,   48   S.   W.   829;    Britton   v.  Minnesota. — Simonson  v.  Grant,  36 

Diessher,  46  Mo.  592;  Owings  v.  Ar-  Minn.  439,  31  N.  W.  861;  Tomlinson 

not,  33  Mo.  406;  Handley  v.  Barrows,  v.  Simpson,  33  Minn.  443,  23  N.  W. 

€8  Mo.  App.  623;   Stephens  v.  Gra-  864. 

ham,  7  S«rg.  &  R.   (Pa.)   505.  Missouri.— Kincaid    v.     Yates,    63 

48.  Buckles  v.  Huff.  53   Ind.  474;  Mo.  45. 

Wehr   V.   German   Congregation,   47  New   York. — Berkhead   v.    Brown, 

Md.   177;    Bank  v.  Hyde,   131   Mass.  5  Hill  (N.  Y.)  34. 

77;  Kaufmann  v.  Rowan,  189  Pa.  St.  North    Dakota. — Cass    County    v. 

121,  42  Atl.  25.  American  Exch.   State  Bank,   11   N, 

49.  Hess   V.    Schaffner    (Tex.   Civ.  D.  238,  91  N.  W.  59. 

App.  1911),  139  S.  W.  1024.  Ohio.— People's  Ins.  Co.  v.  McDow- 

50.  Wood  V.  Steele,  6  Wall.  (U.  S.)    nell,  41  Ohio  St.  650. 

80,  18  L.  Ed.  725;  State  V.  Welbes,  12  Pennsylyania.— Whelen     v.     Boyd,. 

S.  D.  339,  81  N.  W.  629.  114  Pa.  St.  228,  6  Atl.  384. 

51.  Illinois. — Newlan  v.  Harring-  Texas. — Ryan  v.  Morton,  65  Tex. 
ton,  24  111.  206.  258. 

Indiana.— Huff    v.    Cole,    45    Ind.  52.  Simonson   v.   Grant,   36   Minn. 

300.  439,  31  N.  W.  861. 

Massachnsetts. — Draper  v.  Wood,  See  §  67. 
112  Mass.  315. 


§  104  Suretyship  and  Guaranty.  122' 

of  the  inducement  which  his  principal  would  have  to  perform 
the  contract  in  due  time  as  is  stipulated  in  the  instrument,  and 
thereby  make  the  surety  liable  in  damages  for  delay  in  complet- 
ing the  work  on  time.^^  If  the  surety  agrees  to  the  modification 
of  the  contract  he  is  still  bound.^^  But  where  he  does  not  agree 
to  the  alteration  he  is  discharged.  Thus,  where  several  sureties 
execute  a  joint  and  several  bond,  limiting  their  liability  in  ex- 
press terms,  and  then  another  surety  as  agreed  executes  it,  but 
makes  a  material  alteration  as  to  his  liability  which  appears  on 
the  face  of  the  bond,  and  the  obligee  accepts  it  without  objection, 
the  first  sureties  are  discharged  from  their  obligation,  and  the 
latter  surety,  having  executed  as  a  joint  and  several  bond,  is  also 
discharged.^^ 

§  104.  Commercial  Instruments. — Upon  the  ground  of  public 
policy  very  slight  alterations  of  negotiable  paper  are  held  to  be 
material,  and  any  change  of  date,  or  amount,  or  rate  of  interest, 
or  place  of  payment,  is  held  to  discharge  the  parties  to  the  in- 
strument, without  knowledge  of,  or  consent  to,  such  change,  upon 
the  ground  that  they  are  material  alterations.^®  Commercial  in- 
struments of  the  class  which  pass  from  hand  to  hand  are,  on  the 
ground  of  public  policy,  most  zealously  protected  from  spolia- 
tion. But  it  has  been  held  that  the  addition  of  a  signature  of  a 
surety  to  a  promissory  note,  in  the  form  of  a  joint  promisor^ 
without  the  consent  of  the  maker,  does  not  discharge  him.  Bie- 
cause  neither  the  liability  of  the  maker  of  the  note,  nor  the  effect 
of  a  mortgage  given  to  secure  it,  was  materially  altered  by  the 
added  signature. ^^  And  if  the  alteration  in  no  way  affects  the 
bond,  though  made  without  the  surety's  knowledge,  it  will  not 
discharge  him.^^     Thus,  where  there  is  an  independent  collateral 

53.  Leeds  v.  Dunn,  10  N.  Y.  469;        55.  Jordan  v.  Walters   (Iowa),  80 
General   Steam   Nav.   Co.  v.   Rolt,   6    N.  W.  530. 

C.   B.    (N.   S.)    55;    Calvert  v.   Dock  56.  Wood  v.  Steele,  6  Wall.  (U.  S.) 

Co.,  2  Keen  638.  80,  18  L.  Ed.  725. 

54.  Ellesmere     Brewing  Co.     v.  57.  Mersman  v.  Werges,  112  U.  S. 
Cooper   (1896),  1  Q.  B.  75.  In  this  139,  5  S.  Ct.  65,  28  L.  Ed.  641. 

case  the  surety  executing  last  signed  See  §  110. 

his  name,  after  which  he  stated  the  58.  United    States    Glass    Co.    v. 

amount  of  his   liability,   which   was  Mathews,  89  Fed.  828. 

not  the  amount  agreed  upon  at  first. 


123  Discharge  of  Surety.  §§  105,  106 

agreement  between  the  principal  and  obligee,  making  more  definite 
one  of  the  clauses  of  the  instrument,  but  not  in  any  way  chang- 
ing or  altering  the  instrument,  and  it  does  not  touch  any  of  the 
provisions  of  the  performance  of  which  the  surety  has  guaranteed, 
it  is  not  sufficient  to  discharge  him;  because  such  an  agreement 
makes  no  variation  in  the  obligation  or  liability  of  the  surety,  and 
does  not  concern  him,  and  leaves  the  original  agreement  intact.^ 
And  so  an  alteration  of  a  note  before  delivery  to  make  it  con- 
form to  the  intention  of  the  parties,  does  not  release  the  surety 
thereon,  though  made  without  his  knowledge.^ 

§  105.  Change  of  Date. — The  alteration  in  the  date  of  the 
instrument  discharges  the  surety.  Thus,  an  alteration  in  the  date 
of  a  note  so  as  to  make  it  fall  due  one  year  later,  is  a  material 
alteration  as  to  the  surety.*^  So  the  change  of  the  time  of  pay- 
ment of  a  note  from  *'  one  day  "  to  "  one  year  "  after  date,  is  such 
alteration  as  will  discharge  the  surety.^^  But  where  the  date  is 
changed  merely  to  correct  a  mistake  and  make  the  note  such  as 
both  parties  intended  it  to  be,  will  not  avoid  the  note  in  the  hands 
of  the  indorsee.^ 


§  106.  Alteration  of  Amount. — If  the  amount  of  a  note  is 
•changed  after  delivery,  the  surety  will  be  discharged."  So  the 
alteration  of  an  official  bond  decreasing  the  penalty  after  it  is 
signed,  without  the  obligors'  consent,  will  relieve  them  of  lia- 
bility;*^ so  an  increase  of  the  penalty  will  discharge  the  surety.®* 
And  when  a  surety  on  a  note,  complete  in  all  its  parts,  permits 
his  principal  to  take  it  to  a  bank  to  be  discounted,  who  alters  it 
to  a  large  amount  and  then  has  it  discounted,  the  surety  is  not 

59.  Smith  v.  United  States,  2  Wall.       62.  Stayner  v.  Joice,  82  Ind.  35. 
(U.  S.)   219,  17  L.  Ed.  788;  Wehr  v.        63.  Ames     v.     Colburn,     11     Gray 
German   Congregation,  47  Md.   177;     (Mass.)  390. 

Bank  v.  Hyde,  131  Mass.  77.  64.  Portage  County  Bank  v.  Lane, 

60.  Mattingly  v.  Riley,  20  Ky.  Law    8  Ohio  St.  405. 

R«p.  1621,  49  S.  W.  799.  65.  State  ex  rel.  Jackson  County  v. 

61.  Wyman  v.  Yeomans,  84  111.  Chick,  146  Mo.  645.  48  S.  W.  829; 
403;  Miller  v.  Gilliland,  19  Pa.  St.  Doane  v.  Eldridge,  16  Gray  (Mass.) 
119;   Stephens  v.  Graham,  7  Serg.  &  254. 

R.  (Pa.)  505.  66.  Dover  v.  Robinson,  64  Me.  183. 


§§   107-109  Stjeettship  and  Guaranty.  124 

liable  for  the  larger  amount."     But  the  rule  would  be  different 
if  the  surety  had  shown  negligence  in  filling  out  the  note. 

§  107.  Alteration  of  the  Rate  of  Interest. — A  change  of  the 
rate  of  interest  in  a  note  is  a  material  alteration.  And  such  al- 
teration by  the  principal  with  the  consent  of  the  holder,  but  with- 
out the  consent  of  the  surety,  discharges  the  surety,  although 
without  fraudulent  intention.*^^  The  rule  is  the  same,  if  the  rate 
of  interest  is  decreascd.'^^ 

So  the  alteration  of  a  note  by  the  addition  of  the  words  "  with 
interest"  avoids  the  note  as  to  the  surety  or  joint  promisor  who 
did  not  consent  thereto.^*^ 

§  108.  Changing  the  Place  of  Payment. — If  there  is  an  altera- 
tion of  the  note  by  changing  the  place  of  payment  without  the  con- 
sent of  the  surety,  it  will  discharge  him.''^  It  is  the  duty  of  the 
maker  to  seek  the  payee  at  the  place  designated,  and  the  surety 
must  see  that  the  debt  is  paid,  but  if  the  place  of  payment  is 
changed  without  his  consent,  his  duties  are  thereby  increased,  and 
it  will  require  a  greater  effort  to  find  the  payee.^^ 

§  109.  Destroying  the  Identity  of  the  Contract. — By  destroy- 
ing the  identity  of  the  contract,  the  surety  is  released.  Hence,  a 
material  alteration  of  a  note  made  by  one  of  the  promisors  before 
its  delivery,  and  without  the  knowledge  of  the  other  promisor,  dis- 
charges the  latter.''^     So  the  addition  of  "  gold  "  to  a  promissory 

67.  Agawam  Bank  v.  Sears,  4  Gray  69.  Post  v.  Losey,  111  Ind.  74,  12 
(Mass.)   95.  N.  E.  121;   Whitmer  v.  Frye,  10  Mo. 

68.  United  States.— Wood  v.  Steele,   348. 

6  Wall.  80,  18  L.  Ed.  725.  70.  Fay    v.    Smith,    1    Allen    477; 

Indiana. — Hart  v.  Clouser,  30  Ind.  Waterman  v.  Vose,  43  Me.  504. 

210.  71.  Pahlman  v.  Taylor,  75  111.  629; 

Iowa. — Marsh   v.   Griffin,   42   Iowa  Townsend    v.    Star   Wagon    Co.,    10 

403.  Neb.  615,  7  N.  W.  274;  Nazro  v.  Ful- 

Kentucky.— White  V.  Shepherd,  140  ler,   24   Wend.    (N.   Y.)    374;    Wood- 

Ky.  349,  131  S.  W.  17.  worth    v.    Bank,    19    Johns.    (N.    Y.) 

Ohio. — Jones  v.  Bangs,  40  Ohio  St.  420;    Southwick  Bank  v.  Grosse,  35 

139;   Harsh  v.  Klepper,  28  Ohio  St.  Pa.  St.  82. 

200;  Boalt  v.  Brown,  13  Ohio  St.  364.  72.  Woodworth  v.  Bank,  19  Johns. 

Pennsylyania,— Neff  v.  Horner,  63  (N.  Y.)  420. 

Pa.  St.  327.  73.  Draper  v.  Wood,  112  Mass.  315.. 


125  DiSCHAEGE  OF  SuKETY.  §    11<^ 

note  payable  in  dollars,  bj  the  principal  before  delivery,  without 
the  consent  of  the  surety,  discharges  the  latter.''*  And  any  writ- 
ing upon  a  note  which  seeks  to  make  a  guarantor  a  surety  is  ma- 
terial and  releases  the  guarantor^''  So  where  the  payee  of  a  note 
writes  his  own  name  under  the  maker's,  and  adds  after  his  name 
*'  security,"  it  avoids  the  note.^^  So  inserting  the  words  "  or 
order  "  in  a  non-negotiable  note  is  a  material  alteration  and  ren- 
ders it  void."  And  the  same  is  true  where  a  qualified  guarantee 
is  made  into  an  absolute  guarantee.^^  So  changing  the  payee  in 
a  note  signed  by  a  surety,  discharges  the  surety.^^ 

§  no.  Addition  of  Surety  to  a  Note. — Some  courts  hold, 
against  the  weight  of  authority,  that  where  a  promissory  note  is 
fully  executed  by  the  principal  and  surety  and  delivered  to  the 
payee,  and  thereafter,  without  the  consent  of  the  surety,  the  name 
of  another  surety  is  added  thereto,  as  an  additional  surety,  the 
first  surety  is  discharged.^^*  But  the  better  rule  is  that  the  addi- 
tion of  a  surety  on  a  promissory  note  without  the  consent  of  the 
maker  or  prior  surety,  does  not  discharge  either  of  them.^°  Be- 
cause the  signature  added,  although  in  the  form  of  that  of  joint 
promisor,  is  in  fact  that  of  a  surety  or  guarantor  only,  and  the 
original  maker  is,  as  between  himself  and  the  surety,  exclusively 
liable  for  the  whole  debt,  and  his  ultimate  liability  to  pay  that 
amount  is  not  increased  nor  diminished,  and  according  to  the 
general  current  of  the  American  authorities,  the  addition  of  a 

74.  Hanson  V.  Crowley,  41  Ga.  303;  Iowa. — Berreyman  v.  Manker,  56 
Church  V.  Howard,  17  Hun  (N.  Y.)  Iowa  150,  9  N.  W.  103;  Hamilton  v. 
5;  Bogarth  -vi  Breedlove,  39  Tex.  Hooper,  46  Iowa  515;  Dickerman  v. 
561.  Miner,  43  Iowa  508. 

75.  Robinson  v.  Reid,  46  Iowa  219.  Kentucky. — Shipp  v.  Suggett,  9  B. 

76.  Chappell  v.  Spencer,  23  Barb.  Mon.  5,  8.  See  Rumley  Co.  v.  Wil- 
(N.  Y.)  584.  Cher,  23  Ky.  Law  Rep.  1745,  66  S.  W. 

77.  Haines   v,    Dennett,    11   N.   H.  17,  23. 

180.  Maine. — Chadwick  v.  Eastman,  53 

78.  Newlan  v.  Harrington,  24  111.    Me.  12. 

206.  Ohio.— Wallace  v.  Jewell,  21  Ohio 

79.  Bell  V.  Mahlin,  69  Iowa  408,  29    St.  163. 

N.  W.  331.  England.— Gardner  v.  Walsh,  5  El. 

79a.  Indiana.— Henry  v.  Coats,  17  &  Bl.  82. 

Ind.  162.     See  Crandall  v.  First  Na-  80.  Mersman  v.  Werges,  112  U.  S. 

tional  Bank  of  Auburn,  61  Ind.  349.  139,  5  S.  Ct.  65,  28  L.  Ed.  641. 


§  110  Suretyship  and  Guabanty.  126^ 

name  of  a  surety,  whether  before  or  after  the  first  negotiation  of 
the  note,  is  not  such  an  alteration  as  discharges  the  maker  or  the 
prior  surety.*^ 

The  English  cases  afford  no  sufficient  ground  for  a  different 
doctrine.  In  a  decision  at  law  it  was  held  that  the  signing  of  a 
note  by  an  additional  surety  without  the  consent  of  the  original 
makers  prevented  the  maintenance  of  an  action  on  the  note  against 
them.*^  But  in  an  earlier  decision  of  equal  weight,  it  was  held 
that  in  such  a  case  the  addition  did  not  avoid  the  note  nor  prevent 
the  original  surety  on  paying  the  note  from  recovering  of  the 
principal  maker  the  amount.^^  And  in  a  later  case,  the  Court  of 
Chancery,  upon  an  appeal  in  bankruptcy,  decided  that  the  addi- 
tion of  a  surety  was  not  a  material  alteration  of  the  original  con- 
tract.^^ 

So,  according  to  the  latter  rule,  a  mortgage  executed  by  hus- 
band and  wife  on  her  land,  for  the  accommodation  of  a  partner- 
ship in  which  the  husband  is  a  member,  and  as  security  for  the 
payment  of  a  negotiable  promissory  note  for  the  same  purpose^ 
and  to  which  note  the  partner,  before  negotiating  it,  added  thfr 
wife's  name  as  a  maker,  with  the  consent  or  knowledge  of  her- 
self or  her  husband,  is  not  thereby  avoided  as  against  a  party  who, 
in  ignorance  of  the  note  having  been  so  altered,  lends  money  to 
the  partnership  upon  the  security  of  the  note  and  mortgage.** 

In  Nebraska  if  other  sureties  sign  a  bond  after  it  has  been  de- 
livered, the  prior  sureties  will  be  released  and  the  latter  held  for 
subsequent  default.*® 

81.  Oklahoma. — Montgomery  Rail-  alteration  of  the  bond.     Holthous© 

road  V.  Hurst,  9  Ala.  513.  v.  State   (Ind.  App.  1912),  97  N.  B_ 

Massachusetts. — Stone  v.  White,  8  130. 

Gray  589.  82.  Gardner  v.  Walsh,  5  El.  &  BL 

Michigan.— Miller    v.     Finley,     26  83. 

Mich.  249.  83.  Cotton    v.    Simpson,    8    Ad.    & 

New  York. — Brownell    v.    Winnie,  El.  136,  3  Nev.  &  Per.  248. 

29  N.  Y.  400;   McCaughey  v.  Smith,  84.  Ex  parte  Yates,  2   DeG.  &  J, 

27  N.  Y.  39.  191. 

England. — See,     also.     Aldous     v.  85.  Mersman  v.  Werges,  112  U.  S. 

Cornwell,  L.  R.  3  Q.  B.  573.  139,  5  S.  Ct.  65,  28  L.  Ed.  641. 

The  signing  of  an  additional  name  86.  Stoner    v.    Keith    County,    iS 

fo  a  bond  as  a  surety  for  all  persons  Neb.   279,  67  N.  W.   311.     Compare 

vho  at  that  time  had  executed  the  State  v.  Paxton,  65  Neb.  110,  90  N. 

same  does  not  constitute  a  material  W.  983. 


127 


Discharge  of  Surety. 


§  111 


§  III.  Changing  the  Covenants  of  a  Lease  Signed  by  Surety. — 
If  the  lessor  and  lessee  change  the  covenants  in  a  lease,  without 
the  surety's  knowledge,  he  is  discharged." 

And  where  the  parties  to  the  lease  make  a  new  contract,  with- 
out the  consent  of  the  lessee's  surety,  the  surety  is  discharged,  as 
where  the  lease  is  surrendered  for  a  consideration.**  But  where 
the  lessee  agreed  to  put  certain  machinery  and  stock  in  a  leased 
building  to  be  security  for  the  rent  the  surety  on  his  bond  to 
secure  performance  of  the  terms  of  the  lease  was  not  released  by 
the  fact  that  the  property  which  the  tenant  put  in  the  building 
was  subject  to  an  express  or  statutory  lien  or  whether  certain  parts 
of  it  were  released  upon  the  claim  of  a  third  party  thereto.*^  And 
a  surety  cannot  complain  if  the  rent  is  reduced  without  his  knowl- 
edge, as  such  reduction  is  equivalent  to  payment  of  the  amount 
reduced.^"  And  the  assignment  of  a  lease  by  the  lessee  does  not 
discharge  either  the  lessee  or  his  surety  from  the  covenants,  and 
it  does  not  have  this  effect  even  when  the  lessor  recognizes  the 
assignment  by  accepting  rent  from  the  assignee.^^ 


87.  Ziegler  v.  Hallahan,  126  Fed.. 
788;  Berman  v.  Shelby,  93  Ark.  472, 
125  S.  W.  124;  White  v.  Walker,  31 
111.  422;  Grant  v.  Smith,  46  N.  Y.  95; 
City  of  New  York  v.  Clark,  84  App. 
Div.  (N.  Y.)  383,  82  N.  Y.  Supp.  855; 
Revel  Realty  &  Securities  Co.  v. 
Maxwell,  65  Misc.  R.  (N.  Y.)  54,  119 
N.  Y.  Supp.  257. 

Where  the  terms  of  a  lease  bind 
the  landlord  to  put  a  water  heater 
In  the  bath  room,  and  bind  the  ten- 
ant to  pay  rent  upon  a  failure  of  the 
landlord  to  supply  the  water  heater, 
the  tenant  may  refuse  to  pay  rent 
and  vacate  the  premises,  and  the 
surety  on  a  bond  to  secure  the  pay- 
ment of  the  rent  is  released.  Ber- 
man V.  Shelby,  93  Ark.  472,  125  S. 
W.  124. 

Burden  of  proof.  To  entitle  a 
landlord  to  recover  on  a  note  signed 
by  the  tenant  and  others  as  sureties 
it  is  incumbent  on  him  to  show  a  de- 
fault   or    failure    on    the    part    of 


the  tenants  to  comply  with  the 
terms  of  the  lease.  Revel  Realty  & 
Securities  Co.  v.  Maxwell,  115  N.  Y. 
Supp.  1033. 

Assent  to  modification  of  lease 
held  not  to  discharge  surety.  Den- 
ing  V.  Maas  (Cal.  App.  1912),  123 
Pac.  204. 

88.  Hotel  Milton  Co.  v.  Powell 
(Mo.  App.  1910),  123  S.  W.  953; 
Nichols  V.  Palmer,  48  Wis.  110,  4  S. 
W.  137. 

89.  Marsh  v.  Phillips  (Tex.  Civ. 
App.  1912),  144  S.  W.  1160. 

90.  Preston  v.  Huntington,  67 
Mich.  139,  34  N.  W.  279;  Dodd  v. 
Vucovich,  38  Mont.  188,  99  Pac.  296; 
Ullman  Realty  Co.  v.  Hollander,  66 
Misc.  R.  (N.  Y.)  348,  123  N.  Y.  Sunp. 
772. 

91.  Illinois.— Grommes  v.  St.  Paul 
Trust  Co.,  147  111.  634,  35  N.  E.  820; 
Farnham  v.  Monroe,  35  111.  App.  114  r 
Dietz  V.  Schmidt,  27  III.  App.  115. 


§    111  SUEETYSHIP  AND  GUAEANTY.  128 

But  the  surety  of  a  lessee  who  covenants  to  pay  the  rent  to 
the  lessors  on  the  lessee's  default  is  held  not  to  be  liable  for  the 
default  of  a  corporation  to  which  the  lessee  assigned  the  lease 
before  it  went  into  effect  without  any  reservation  as  to  himself 
or  the  lessors  who  recognized  the  corporation  as  the  tenant  under 
the  lease.^^ 

If  the  lessor  takes  back  part  of  the  land  and  reduces  the  rent  on 
the  remainder,  this  will  release  the  surety.^^  As  a  general  rule 
when  the  sureties'  rights  are  in  no  way  affected,  they  will  not 
be  discharged  from  the  covenants  in  the  lease.®* 

The  surrender  of  leased  premises  by  the  lessee  will  not  release 


Massachusetts. — Way    v.    Reed,   6  tenants    to    occupy    premises    after 

Allen  364.  breach  by  lessee  does  not  discharge 

New  Jersey. — Hunt  v.  Gardner,  39  surety.     Dodd  v.  Vucovich,  38  Mont. 

N.  J.  L.  530.  188,  99  Pac.  296. 

New  York. — Damb  v.  Hoffman,  3  Re-entry   and   reletting   by   land- 

E.  D.  Smith  361;  Vescheiser  v.  New-  lord  and  alteration  of  premises  by 

man,  135  N.  Y.  Supp.  671;  Flank  v.  him    does    not    release    surety,    the 

Kuhlmann,  63  Misc.  R.  334,  117  N.  Y.  lease  permitting  him  to  re-enter  and 

Supp.  110.  relet  and  to  apply  rent  received  in 

Rhode   Island. — Olney    v.    Greene,  reduction   and  satisfaction  of  what 

13  R.  I.  350.  may  be  due  from  lessee.     Mulert  v. 

Where  summary  proceedings  ter-  Real  Estate  Trust  Co.  of  Pittsburg, 

minate  principal  tenancy  and  a  sub-  226  Pa.  St.  602,  75  Atl.  848. 

tenant  is  only  liable  for  use  and  oc-  Persons  who  executed  a  bond  to 

cupation    under   the    Code,    held    to  a  college,  guaranteeing  the  payment 

release  surety.     Ranier  v.  Smith,  65  of  such  sums  as  shall  become  due 

Misc.  R.  (N.  Y.)  560,  120  N.  Y.  Supp.  from  a  certain  student  "  for  the  rent 

993.  of  any  room  which  may  be  assigned 

92.  Murphy  v.  Ottman,  127  App.  to  him  in  accordance  with  his  appli- 
Div.  (N.  Y.)  563,  111  N.  Y.  Supp.  912,  cation  before  he  becomes  a  student 
holding  this  to  be  true,  although  the  in  the  university,"  are  liable  on  the 
surety  covenanted  that  he  was  bound  undertaking,  although  their  prin- 
to  the  assigns  of  the  lessors  and  cipal  having  engaged  a  room  for  the 
the  lease  provided  that  the  lessee  last  year  of  his  course,  did  not  re- 
might  assign  to  a  corporation  if,  in  turn  to  college  and  use  the  same,  if 
fact,  the  surety  guaranteed  only  the  college  authorities  in  order  to 
against  the  default  of  the  original  reduce  the  damage  have  used  rea- 
lessee.  sonable  effort  to  rent  the  room  to 

93.  Penn  v.  Collins,  5  Rob.  (La.)  other  persons  without  success. 
•213.  President  &  Fellows  of  Harvard  Col- 

94.  Morgan  v.  Smith,  70  N.  Y.  537.  lege  v.  Kempner,  131  App.  Div.    (N. 
Act  of  landlord  in  permitting  other  Y.)  848,  116  N.  Y.  Supp.  437. 


129"  Discharge  of  Surety.  §  112 

a  surety  from  such  rent  as  has  become  due,  but  only  for  rent 
which  has  not  fully  accrued.®"' 

^  112.  Building  Contracts. — The  doctrine  that  the  liability  of 
a  surety  is  strictisaihii  juris  means  that  a  surety  shall  not  be  held 
beyond  the  precise  terms  of  his  contract,  and  not  that  a  different 
rule  must  be  applied  in  the  construction  of  contracts  of  surety- 
ship, than  that  which  is  to  be  applied  in  the  construction  of  con- 
tracts in  general.  The  rule  that  the  contract  should  not  be  ex- 
tended by  implication  applies  in  the  case  of  bonds  given  to  secure 
performance  of  building  contracts.  So  where  a  builder's  con- 
tract obligated  the  builder  to  provide  all  material  and  perform  all 
Avork  for  a  cottage  of  six  rooms,  complete  as  shown  in  the  draw- 
ings and  described  in  the  specifications  of  the  architect,  and  the 
bond  signed  by  two  sureties  recited  that  the  builder  has  con- 
tracted ''  to  furnish  all  material  and  labor  to  complete  all  the 
work  as  called  for  in  the  plans  and  specifications  for  the  comple- 
tion of  a  one-story  frame  cottage,"  but  the  specifications  called 
for  the  erection  of  a  barn  also,  the  sureties  were  not  bound  for 
the  construction  of  the  barn.®" 

A  bond  executed  by  a  contractor  to  secure  the  performance  of 
a  contract  entered  into  for  the  construction  of  a  building,  and  to 
pay  debts  incurred  in  the  prosecution  of  the  work,  inures  to  the 
benefit  of  one  furnishing  labor  and  material  in  the  construction 
of  such  building.  The  construction  contract  being  a  part  of  the 
bond,  and  it  being  provided  therein  that  changes  can  be  made 
in  the  plan  and  specifications  of  the  building  in  the  manner  therein 
stated,  the  sureties  thereby  consented  in  advance  to  any  departure 
from  the  original  plans  which  were  in  the  strict  construction  of 
the  contract.®^  And  in  such  agreement  there  are  two  contracts 
with  one  consideration  to  support  both:  (1)  That  the  building 
shall  be  erected  according  to  specifications;  (2)  that  the  employees 
of  the  contractor  shall  be  paid.  Hence,  if  the  owner  of  the  build- 
ing makes  a  change  in  the  contract  as  to  the  erection,  that  has 
no  eifect  as  to  the  employees  of  the  contractor,  as  to  them  the 

95.  American      Bonding      Co.      v.       96.  IMiller   v.    Friedheim.    82    Ark. 
Pueblo  Ins.  Co.,  150  Fed.  17,  80  C.  C.    592,  102  S.  W.  372. 
A,  97.  97.  Smith   v.   Molleson,  148   N.   Y. 

241,  42  N.  E.  669. 

9 


§    112  SUEETYSUIP  AND  GUARANTY.  130 

sureties  are  not  discliarged.^^  The  bond  being  conditioned  not 
only  to  protect  the  owner  of  the  proposed  building,  but  the  ma- 
terial men  and  employees,  the  latter  can  sue  on  the  bond  for  ma- 
terial furnished  and  labor  performed.^'* 

Jn  many  States  a  third  person,  such  as  sub-contractors,  labor- 
ers and  material  men,  may  maintain  an  action  upon  a  bond  given 
by  a  contractor  to  the  State,  county,  city,  or  school  district,  con- 
ditioned for  the  faithful  performance  of  a  contract  for  a  public 
improvement  for  the  payment  of  all  claims  of  such  third  persons, 
though  not  expressed  in  the  bond,  and  a  change  in  the  contract 
vi^ith  the  principal  does  not  discharge  the  sureties  as  to  the  vested 
rights  of  such  third  parties.^ 

So  a  surety  on  a  bond  cannot  be  released  from  the  original 
contract  by  a  change  in  the  agreement  between  the  contractor  and 
the  owner  of  the  building,  and  an  action  on  the  bond  can  be  main- 
tained against  him  by  a  material  man  for  an  unpaid  amount  due 
him  on  account  of  material  furnished  to  the  contractor.^    Because 

98.  Doll  V.  Crume,  41  Neb.  655,  59  &  Surety  Co.,  40  Misc.  R.  530,  82  N. 
N.  W.  806;  Lyman  v.  City  of  Lincoln,    Y.  Supp.  944. 

38  Neb.  794,  57  N.  W.  531.  When  surety  not  liable,  see  Green- 

99.  School  Dist.  of  Kansas  City  ex  field  Lumber  &  Ice  Co.  v.  Parker, 
rel.  Koken  Iron  Works  v.  Livers,  159  Ind.  571,  65  N.  E.  747;  Lake 
147  Mo.  580,  49  S.  W.  507.  Charles    Planing  Mill  Co.   v.   Grand 

When  surety  liable  for  materials  Lodge,  127  La.  238,  53  So.  550. 

and  labor  and  liens  therefor,  see:  1.  Iowa. — Baker  v.  Bryan,  64  Iowa 

California. — Alcatraz  Masonic  Hall  562. 

Ass'n    V.    United    States    Fidelity   &  Michigan.— Knapp   v.    Swaney,   56 

Guaranty   Co.,   3    Cal.   App.    338,    85  Mich.  345,  23  N.  W.  162. 

Pac.  156.  Missouri. — Devers  v.  Howard,  144 

Colorado.— Covey    v.    Schiesswohl,  Mo.  671,  46  S.  W.  625;  St.  Louis,  City 

50    Colo.    68,    114    Pac.    292;    Ripley  of,  to  Use  of  Glencoe  Lime  &  Cement 

Building  Co.  v.  Coors,  37  Colo.  78,  84  Co.  v.  Von  Phul,  133  Mo.  561,  34  S. 

Pac.  817.  W.  843. 

Kentucky. — Mayes  v.  Lane,  25  Ky.  Nebraska. — Kauffman    v.    Cooper, 

Law  Rep.  824,  76  S.  W.  399.  46  Neb.  644,  65  N.  W.  796;  Korsmeyer 

Massachusetts. — Sampson     Co.     v.  Plumbing  &  Heating  Co.  v.  McCay,  43 

Commonwealth,  208  Mass.  372,  94  N.  Neb.    649,    62   N.   W.    50;    Sample   v. 

E.  473.  Hale,  34  Neb.  220,  51  N.  W.  837. 

Michigan. — Stoddard     v.     Hibbler,  New  York. — Mechanics  &  Traders' 

156  Mich.  335,  120  N.  W.  787.  Nat.  Bank  v.  Winant,  123  N.  Y.  265, 

^       New         York.  —  Degnon-McLean  25  N.  E.  262. 

Const.  Co  v.  City  Trust,  Safe  Deposit  2.  Dewey  v.  McCollum,  91  Ind.  173; 

Freeman  v.  Berkey,  45  Minn.  438,  48 


131  Discharge  of  Surety.  §  112a 

the  duties  of  the  sureties  in  such  cases  of  third  parties  are  en- 
tirely independent  of  the  owner's  rights,  and  when  the  third 
party's  rights  are  fixed  they  can  be  destroyed  only  by  his  own  acts, 
and  not  by  the  acts  of  the  principal  debtor  or  contractor.^ 

Nor  is  the  surety  released  by  the  fact  that  the  contract  which 
the  bond  was  given  to  secure  was  not  entered  into  in  compliance 
with  statutory  provisions  in  regard  thereto;^  nor  that  the  bond 
was  not  filed  in  accordance  with  statute  f  nor  by  changes  made  in 
constructing  a  public  building  in  pursuance  of  directions  of  a 
committee  whose  order  of  appointment  provided  that  it  should 
have  no  power  to  make  changes  f  nor  by  an  illegal  agreement  be- 
tween the  official  in  charge  of  a  public  improvement  and  the  con- 
tractor in  regard  to  sharing  the  profits  on  such  contract.^  And 
where  there  was  an  intention^  on  the  part  of  the  sureties  to  be 
bound  by  the  bond  signed  by  them,  their  liability  is  held  not  to 
be  affected  by  the  fact  that  it  was  not  signed  by  the  contractor, 
it  appearing  by  the  terms  of  such  instrument  that  the  liability  im- 
posed upon  the  contractor  thereby  differed  in  no  respect  from  that 
imposed  by  the  terms  of  his  contract.* 


§  112a.     Building  Contracts — Surety  Released  by  Change  of. — 

The  surety  for  the  performance  of  a  building  contract  is  released 
by  any  material  change  in  or  departure  from  such  contract  where 

N.  W.  194;  Abbott  v.  Morressette,  46  to  the  fact  that  it  was  not  entered 

Minn.  10,  48  N.  W.  416;  Sepp  v.  Mc-  into  in  compliance  with  statute,  has 

Cann,   47   Minn.  364,   50  N.  W.  246;  been   held   to    be   no   defense   to   an 

School  Dist.  of  Kansas  City  ex  rel.  action  against  the  surety  on  a  bond 

Koken    Iron    Works    v.    Livers,    147  given      in      connection      therewith. 

Mo.  580,  49  S.  W.  507;   Henricus  v.  Kansas  City  Hydraulic  Press  Brick 

Engbert,  137  N.  Y.  488,  33  N.  E.  550.  Co.  v.  National  Surety  Co.  (U.  S.  C. 

3.  Conn  v.  State  ex  rel.  Stutsman,  C),  149  Fed.  507. 

125   Ind.   513,  25  N.  E.  443;    Doll  v.  5.  People's  Lumber  Co.  v.  Gillard, 

Crume,  41  Neb.  655,  59  N.  W.  806;  136  Cal.  55,  68  Pac.  576. 

Henricus  v.  Engbert,  137  N.  Y.  488,  6.  Allen   County   v.   United   States 

33  N.  E.  550;  Wilson  v.  Webber,  92  Fidelity    &    Guaranty    Co.,    29    Ky, 

Hun  466,  36  N.  Y.  Supp.  550,  157  N.  Law  Rep.  356,  93  S.  W.  44. 

Y.  693,  51  N.  E.  1094.  7.  Fergus  Falls  v.  Illinois  Surety 

4.  People's  Lumber  Co.  v.  Gillard,  Co.,  112  Minn.  462,  128  N.  W.  820. 
136  Cal.  55,  68  Pac.  576.  8.  Wright     v.     Jones     (Tex.     Civ. 

The   invalidity  of   a   contract   be-  App.  1909),  120  S.  W.  1139, 
tween  a  city  and  a  contractor  owing 


§   112a 


Suretyship  and  GuAKuiNTY. 


132 


made  without  his  consent.^  So  a  provision  in  the  bond  of  a 
surety  company  that  notice  shall  be  given  of  any  "  changes  or  al- 
terations in  the  contract  or  plans  and  specifications  "  has  been 
construed  as  not  imposing  upon  the  obligees  the  duty  to  give  no- 
tice where  the  alterations  were  not  material  to  the  risk.-''' 

In  case  of  a  departure  from  a  building  contract  which  is  not 
merely  a  permissive  one  but  a  departure  made  in  conformity  to 
one  or  more  subsequent  express  or  implied  agreements  it  is  said 
that  the  question  of  the  liability  of  a  surety  on  the  bond  turns 
upon  whether  or  not  the  identity  of  his  contract  has  been  de- 
stroyed by  the  principal  parties  adding  to  or  deducting  therefrom 
one  or  more  new  terms  or  stipulations  without  his  consent;  and 
that  it  is  wholly  immaterial  whether  his  risk  has  been  increased 
or  diminished/^ 


9.  Arkansas. — Enfurth  v.  Steven- 
son, 71  Ark.  199,  72  S.  W.  49. 

California. — Barrett-Hicks  Co.  v. 
Glas,  14  Cal.  App.  289,  111  Pac.  760; 
Barrett-Hicks  Co.  v.  Glas,  9  Cal. 
App.  491,  99  Pac.  856;  Alcatraz 
Masonic  Hall  Ass'n  v.  United  States 
Fidelity  &  Guaranty  Co.,  3  Cal.  App. 
538,  85  Pac.  156. 

Georgia. — Haigler  v.  Adams,  5  Ga. 
App.  637,  63  S.  E.  715. 

Iowa.— Bartlett  v.  Illinois  Surety 
Co.,  142  Iowa  538,  119  N.  W.  729. 

Louisiana. — Police  Jury  of  Parish 
of  Vernon  v.  Johnson,  111  La.  279, 
35  So.  550. 

Minnesota. — Norwegian  Evangeli- 
cal Lutheran  Bethlehem  Con&rega- 
tion  V.  United  States  Fidelity  & 
Guaranty  Co.,  83  Minn.  269,  86  N.  W. 
330. 

Missouri.  —  Utterson  v.  Elmore 
(Mo.  App.  1911),  136  S.  W.  9;  Harris 
V.  Taylor  (Mo.  App.  1910),  129  S.  W. 
995;  Burnes'  Estate  v.  Fidelity  & 
Deposit  Co.,  96  Mo.  App.  467,  70  S. 
W.  518;  Swasey  v.  Doyle,  88  Mo. 
App.  536. 

\ew  York.— St.  John's  College  v. 
Aetna  Indemnity  Co.,  201  N.  Y.  335, 


94  N.  E.  994,  affirming  135  App.  Dlv. 
480,  120  N.  Y.  Supp.  496. 

Oregon. — Enterprise  Hotel  Co.  v. 
Book,  48  Ore.  58,  85  Pac.  333;  Weh- 
rung  V.  Denham,  42  Ore.  386,  71  Pac. 
133. 

Texas. — Zang  v.  Hubbard  Building 
&  Realty  Co.  (Civ.  App.  1910>,  125  S. 
W.  85. 

Washington. — Kracht  v.  Empire 
State  Surety  Co.  (Wash.  1911),  113 
Pac.  773. 

10.  Piule  V.  Anderson,  160  Mo.  App. 
347,  142  S.  W.  358. 

11.  Reissaus  v.  Whites,  128  Mo. 
135,  106  S.  W.  603. 

"  The  mere  destruction  of  the 
identity  of  the  contract  without  the 
surety's  consent  is  sufficient  to 
operate  his  release.  The  reasoning 
of  the  law  is  the  surety  is  not  bound 
by  the  old  contract,  for  that  has  been 
abrogated  by  the  new;  neither  is  he 
bound  by  the  new  contract,  because 
he  is  no  party  to  it;  nor  can  it  be 
split  into  parts  so  as  to  be  his  con- 
tract to  a  certain  extent  and  not  for 
the  residue;  and,  thereore,  the 
surety  is  either  bound  in  toto  or  not 
at  all."    Per  Norton!,  J. 


133  Discharge  OF  Surety.  §§112b,  11_'c 

§  112b.  Building  Contracts — Where  Change  Authorized. — 
When  the  building  contract  authorizes  changes  and  variations 
from  the  contract  or  specifications  to  be  made,  such  changes  may 
be  made  in  conformity  thereto  without  discharging  the  sureties. 
This  proposition  rests  upon  the  fact  that  the  sureties  have  con- 
sented in  the  first  instance  to  the  changes  in  the  prescribed  man- 
ner.^ This  is  a  general  rule.^^  So  an  allowance  to  a  contractor  for 
extras  permissible  under  the  contract  do  not  constitute  a  change 
in  the  construction  of  the  building  that  will  release  a  surety  on 
the  contractor's  bond.^*  And  one  who  subsequent  to  the,  time  for 
the  completion  of  the  work  under  a  building  contract  enters  into 
a  bond  to  secure  the  performance  of  such  contract  cannot  avoid 
liability  on  the  ground  that  prior  to  the  time  he  executed  such 
bond  an  extension  of  time  to  complete  the  work  had  been  granted, 
as  notice  to  him  of  an  extension  will  be  implied  in  such  a  case.^^ 
But  when  by  its  terms  a  contract  is  subject  to  alteration,  the  al- 
terations must  be  made  in  compliance  with  the  contract,  or  the 
surety  is  discharged.^^ 

§  II2C.  Building  Contracts — Pemissive  and  Immaterial  Devia- 
tions.— In  building  contracts  cases  of  were  permissive  deviations 
in  acts  and  omissions  of  performance,  without  any  agreement, 
express  or  implied,  between  the  owner  and  contractor  thereabout, 
turn  upon  the  question  of  the  materiality  of  such  deviations  in 
respect  to  the  surety's  risk.^^ 

12.  Reissaus  v.  Whites,  128  Mo.  Bumes'  Estate  v.  Fidelity  &  Deposit 
App.  135,  106  S.  W.  603.  Co.,  96  Mo.  App.  467,  70  S.  W.  518. 

13.  United  States. — McMulIen  v.  Washington.  —  Drumlaeller  v. 
United  States,  167  Fed.  460,  93  C.  C.  American  Surety  Co.,  30  Wash.  530, 
A.  96.  71  Pac.  25. 

Arkansas. — Marree    v.     Ingle,    69  14.  Jenkins    v.    American    Surety 

Ark.  126,  61  S.  W.  369.  Co.,  45  Wash.  573,  88  Pac.  1112. 

Indiana. — Hedrick  v.   Robbins,   30  15.  United  States  Fidelity  &  Guar- 

Ind.  App.  595,  66  N.  E.  704.  anty    Co.    v.    Means   &   Fulton    Iron. 

iowa. — Bartlett  v.   Illinois   Surety  Works  (Tex.  Civ.  App.  1910),  132  S. 

Co.,  142  Iowa  538,  119  N.  W.  729.  W.  536. 

Minnesota. — Fergus   Falls   v.   Illi-  16.  Fullerton  Lumber  Co.  v.  Gates; 

nois  Surety  Co.,  112  Minn.  462,  128  89  Mo.  App.  201. 

N.  W.  S20.  17.  Reissaus    v.    Whites,    128    Mo. 

Missouri.  —  Utterson     v.     Elmore  App.  135,  106  S.  W.  603;    Martin  v. 

(Mo.     App.     1911),     136     S.     W.     9;  Whites,  128  Mo.  App.  117,  106  S.  W. 

608. 


§  112d 


Suretyship  and  Guaranty. 


134 


Acts  or  omissions  in  respect  to  the  performance  of  a  building 
contract  wliicli  are  mere  immaterial  variations  and  insubstantial 
deviations  which  do  not,  in  any  manner,  prejudice  the  right  or  en- 
croach upon  the  liability  of  the  surety  will  not  be  sufficient  to 
operate  a  discharge.^^  This  doctrine  is  supported  by  numerous  de- 
cisions.^^ 

Changes  or  alterations  in  the  manner  of  performing  the  work 
under  a  building  contract  have  been  held  not  to  release  the  surety 
where  the  entire  expense  thereof  was  borne  by  the  obligee  and  the 
liability  of  the  sureties  was  not  added  to  in  any  way  or  the  con- 
tract price  affected  or  changed  in  any  manner.^*^ 

^  1 1 2d.  Building  Contracts — Payment — Certificate  of  Archi- 
tect or  Other  Person. — A  frequent  provision  in  regard  to  pay- 


18.  Martin  v.  Whites,  128  Mo.  App. 
117,  106  S.  W.  608. 

19.  Arkansas.— Maree  v.  Ingle,  69 
Ark.  126,  61  S.  W.  369  (date  of  judg- 
ment). 

Louisiana. — Segari  v.  aiazzei,  116 
La.  1026,  41  So.  245  (cliange  in  site 
of  dwelling  house). 

Maryland. — Aetna  Indemnity  Co. 
V.  Waters,  110  Md.  673,  73  Atl.  712 
(failure  to  notify  of  delays  and 
slight  departure  from  specifications 
and  alteration  invoUing  thirty  dol- 
lars) ;  United  Surety  Co.  v.  Sum- 
mers, 110  Md.  95,  72  Atl.  775  (omis- 
sion of  stairway). 

Massachusetts. — Sampson  Co.  v. 
Commonwealth,  202  Mass.  326,  88  N. 
E.  911  (gi-ving  note  but  not  as  pay- 
ment). 

Minnesota. — Fergus  Falls  v.  Illi- 
nois Surety  Co.,  112  Minn.  462,  128  N. 
W.  820. 

See  Brandrup  v.  Empire  State 
Surety  Co.,  Ill  Minn.  376,  127  N.  W. 
424. 

Missouri.  —  Boppart  v.  Illinois 
Surety  Co.,  140  Mo.  App.  675,  126  S. 
W.  768  (one  alteration  paid  for  by 
owner  and  two  others  to  prevent 
■water  coming  in  through  windows) ; 


Snoqualmi  Realty  Co.  v.  Moynihan, 
179  Mo.  629,  78  S.  W.  1014  (altera- 
tion for  which  no  claim  for  pay  was 
made)  ;  Fullerton  Lumber  Co.  v. 
Gates,  89  Mo.  App.  201. 

New  Jersey. — See  City  of  Newark 
V.  New  Jersey  Asphalt  Co.,  68  N.  J. 
L.  458,  53  Atl.  294. 

Oregon. — Enterprise  Hotel  Co.  v. 
Hook,  48  Ore.  58,  85  Pac.  333  (failure 
to  make  request  for  alterations  in 
writing). 

Texas.— I\Ieyers  v.  Wood,  26  Tex. 
Civ.  App.  591,  65  S.  W.  671  (failure 
of  owner  to  retain  per  cent,  of 
amount  allowed  as  payment). 

Washington. — Keenan  v.  Empire 
State  Surety  Co.  (Wash.  1911),  113 
Pac.  636;  Martin  v.  Empire  State 
Surety  Co.,  53  Wash.  290,  101  Pac. 
876. 

A  mortgage  given  as  security 
held  not  to  be  a  departure  from  a 
building  contract  so  as  to  discharge 
the  surety.  Borucinski  v.  Hampden 
Real  Estate  Trust,  210  Mass.  99,  96 
N.  E.  60. 

20.  Prescott  Nat.  Bank  v.  Head. 
11  Ariz.  213,  90  Pac.  328.  See  cases 
cited. 


135  Discharge  of  Sukety.  §  112d 

ment  is  that  it  shall  only  be  made  upon  the  certificate  or  estimate 
■of  an  architect  or  other  designated  person. 

The  purpose  of  such  a  stipulation  for  payments  is  to  guard 
against  the  consequences  of  a  default,  in  case  the  principal  con- 
tract prove  a  losing  one,  or  the  contracting  party  for  any  reason 
fails  to  comply,  the  percentage  retained,  where  that  is  provided 
for,  affording  additional  security,  as  well  as  holding  out  an  in- 
centive; and  when  it  is  not  observed  and  advance  or  overpay- 
ments are  made,  it  is  so  obviously  to  the  prejudice  of  the  surety 
that  it  operates  as  a  discharge  as  a  matter  of  law.^^  So  when  a 
building  contract  provides  for  payments  as  the  work  progresses 
according  to  the  amount  of  materials  furnished  or  work  per- 
formed upon  estimates  to  be  made  by  the  supervising  architect  or 
engineer  and  payments  are  made  in  disregard  of  it  there  is  held 
to  be  such  a  departure  from  the  contract  upon  which  the  under- 
taking of  the  surety  or  guarantor  is  based  that  he  is  released."^ 
An  absolutely  strict  compliance  with  the  provision  as  to  the  cer- 
tificate of  an  architect  or  other  person  has  not  in  all  cases  been 
held  essential.^^ 

And  it  has  been  decided  that  a  surety  is  not  released  where  the 
certificate  is  signed  by  only^  one  instead  of  two  as  required  in  the 
contract,^'*  or  where  it  is  not  signed  at  all,"^  or  where  no  certifi- 
cate was  given  it  appearing  that  the  amount  of  the  payments  did 
not  exceed  that  authorized  by  the  contract  to  be  made.^^ 

21.  Fidelity  &  Deposit  Co.  v.  Ag-  Fidelity  &  Guaranty  Co.,  29  Ky.  Law- 
new,  152  Fed.  955,  82  C.  C.  A.  105;    Rep.  356,  93  S.  W.  44. 

First   National    Bank   v.   Fidelity    &  26.  Brandrup  v.  Empire  State  Surety 

Deposit    Co.    of   Maryland,    145    Ala.  Co.,  Ill  Minn.  376,  127  N.  W.  424. 

335,    40    So.    415;    Harris   v.    Taylor  Where    a    building    contract    pro- 

(Mo.  App.  1910),  129  S.  W.  995.  vided  for  the  payment  of  eighty  per 

22.  Fidelity  &  Deposit  Co.  v.  Ag-  cent,  of  the  amount  due  for  all  work 
new,  152  Fed.  955,  82  C.  C.  A.  105.  done  and  material   in   place   during 

23.  Absolutely  strict  compliance  the  progress  of  the  work  only  upon 
with  provision  as  to  certificate  of  the  certificate  of  the  architect  it 
architect  held  not  essential.  See  was  decided  that  payments  without 
Tally  V.  Ganahl,  151  Cal.  418,  90  Pac.  such  certificate  did  not  release  the 
1049.  surety  where  it  appeared  that  at  no 

24.  City  of  Madison  v.  American  time  did  the  payments  equal  the 
Sanitary  Engineering  Co.,  118  Wis.  designated  per  cent,  of  labor  per- 
480,  95  N.  W.  1097.  formed  or  materials  in  place.     Mar- 

25.  Allen  County  v.  United  States  tin  v.  Whites,  128  Mo.  App.  117,  106 

S.  W.  608. 


§  112e  Suretyship  and  Guaeantt.  13(? 

Where  pa^ineiits  arc  to  be  made  on  the  estimates  of  a  certain 
person  and  the  contract  does  not  provide  whether  the  estimates 
shall  be  oral  or  written,  the  surety  is  not  released  by  a  pay- 
ment upon  an  oral  estimate.^' 

Nor  where  payments  are  to  be  so  made  is  the  surety  released 
by  the  fact  that  the  person  by  whom  the  estimates  are  to  be  fur- 
nished failed  to  perform  his  duty,  it  not  appearing  that  there  was 
any  fraud  by  the  owner  in  making  the  payments  or  that  he  did  not 
act  in  good  faith.^^ 

If  the  contract  does  not  require  that  the  certificate  shall  state  de- 
tails as  to  condition  and  progress  of  the  work  it  is  not  necessary 
that  the  certificate  should  contain  any  statement  in  regard  thereto.^* 
Compliance  with  a  provision  of  this  character  may  also  be  waived 
by  the  surety.^'' 

§   1126.     Building  Contracts — Payment  Generally. — It  may  b» 

stated  generally  that  where  the  contract  provides  the  manner  in 
which  payment  shall  be  made  there  should  be  a  compliance  there- 
with. If  the  contract  provides  that  pajTnents  are  to  be  made  at 
stated  periods  dependent  upon  the  progress  of  the  work  or  are  to 
be  withheld  undfir  certain  designiated  conditions  a  surety  has  a 
right  to  insist  that  such  provisions  shall  be  complied  with  and  will 
be  released  where  there  has  been  a  material  departure  therefrom 
to  his  injury,^^  in  the  absence  of  acts  on  his  part  which  will  oper- 

27.  Alexandria  Water  Co.  v.  Na-  335,  40  So.  415,  holding  no  waiver  un- 
tional  Surety  Co.,  225  Pa.  St.  1,  73  der  facts  of  case:  Cowles  v.  United 
Atl.  952.  States  Fidelity  &  Guaranty  Co.,   32 

28.  Young  Men's  Christian  Ass'n  Wash.  120,  72  Pac.  1032,  holding 
of  North  Yakima  v.  Gibson,  58  Wash,  surety  for  compensation  not  re- 
307,  108  Pac.  766;  See,  also.  City  of  lieved  by  contractor's  waiver. 
Fergus  Falls  v.  Illinois  Surety  Co.,  31.  Alcatraz  Masonic  Hall  Ass'n 
112  Minn.  462,  128  N.  W.  820,  as  to  v.  United  States  Fidelity  &  Guaranty 
irregularities  in  estimates.  Co.,  3  Cal.  App.  338,  85  Pac.  156;  St. 

29.  St.  John's  College  v.  Aetna  In-  John's  College  v.  Aetna  Indemnity 
demnity  Co.,  201  N.  Y.  335,  94  N.  B.  Co.,  201  N.  Y.  335,  94  N.  E.  994,  af- 
994,  affirming  135  App.  Div.  480,  120  firming  135  App.  Div.  480,  120  N.  Y. 
N.  Y.  Supp.  496.  Supp.   496;    Black   Masonry  &  Con- 

30.  Enterprise  Hotel  Co.  v.  Hook,  tracting  Co.  v.  National  Surety  Co. 
48  Ore.  58,  85  Pac.  333.  (Wash.    1911),    112   Pac.   517;    Lein- 

As  to  waiver  of  this  provision,  see  decker  v.  Aetna  Indemnity  Co.,  52 
First  National  Bank  v.  Fidelity  &  Wash.  601,  101  Pac.  219;  Kunz  v. 
Deposit   Co.   of   Maryland,   145   Ala.    Boll,   140  Wis.   69,   121   N.   W.   601; 


137  Discharge  OF  Surety.  §  112f 

ate  as  an  estoppel. ^^  There  are,  however,  niimeroHs  cases  where 
a  payment  before  the  time  stipulated  or  a  failure  to  withhold  pay- 
ments has  been,  under  the  circumstances  of  the  case,  held  not  to. 
be  a  material  chancre  of  the  contract  which  would  discharge  the 
surety. ^^  And  it  has  been  decided  that,  relatively  to  a  surety  on  a 
contractor's  indemnity  bond,  the  owner  of  a  building  is  not  bound 
to  withhold  payments  to  the  contractor,  as  stipulated  and  agreed 
in  the  contract,  on  the  ground  that  the  contractor  is  in  default 
with  the  material  men.^*  And  an  advance  to  a  building  contractor 
for  which  he  gives  his  note  and  which  was  not  intended  by  either 
party  to  be  a  payment  under  the  contract  affecting  the  liability  of 
the  sureties  may  be  regarded  as  a  loan.^" 

And  a  surety  has  been  held  not  to  be  relieved  from  liability  by 
the  fact  that  a  payment  to  the  building  contractor  was  not  paid  at 
the  designated  time,  it  not  appearing  that  the  certificate  provided 
for  in  the  contract  as  a  prerequisite  to  payment  had  ever  been  pre- 
sented.^^ 

§  ii2f.  Building  Contracts — Acceptance  by  Architect — Cer- 
tificate.— A  contract  which  provides  for  the  work  on  a  building 
to  be  performed  in  the  best  manner  and  the  materials  to  be  of  the 
best  quality,  subject  to  the  acceptance  or  rejection  of  an  architect, 

Pauly   Jail   Building   &   Mfg.   Co.   v.  M.  Massachusetts  Bonding  &  Ins. 

Collins,  138  Wis.  494,  120  N.  W.  225.  Co.  v.  Realty  Trust  Co.    (Ga.  1912), 

32.  Hellman  v.  Farrelly,  132  App.  73  S.  E.  1053,  holding  that  the  surety 
Div.  (N.  Y.)  151,  116  N.  Y.  Supp.  on  the  bond  of  a  contractor  for  the 
809;  Hellman  V.  City  Trust,  Safe  De-  faithful  performance  of  a  building 
posit  &  Surety  Co.,  Ill  App.  Div.  contract  is  not  released  because  at 
(N.  Y.)  879,  98  N.  Y.  Supp.  51.  the  time  of  the  payment  of  the  last 

33.  Arkansas.— Marree  v.  Ingle,  69  installment  of  the  contract  price. 
Ark.  126,  61  S.  W.  369.  pursuant  to  the  terms  of  the  con- 

Indiaua.— Hedrick  v.  Robbins,  30  tract,  the  work  is  incomplete  and 
Ind.  App.  595,  66  N.  E.  704.  there  are  unpaid  subcontractors  and 

New  York. — Degnon-McLean  Con-    materialmen, 
struction  Co.  v.  City  Trust,  Safe  De-       35.  Museum  of  Fine  Arts  v.  Ameri- 
posit  &  Surety  Co.,  99  App.  Div.  195,    can    Bonding    Co.    (Mass.    1912),    97 
90  N.  Y.  Supp.  1029,  affirmed  184  N.    N.  E.  633. 
Y.  544,  73  N.  E.  1093.  36.  Martin  v.  Empire  State  Surety 

Oregon.— Enterprise  Hotel   Co.   v.    Co.,  53  Wash.  290,  101  Pac.  876. 
Hook,  48  Ore.  58,  85  Pac.  333.  Examine  Aetna  Indemnity  Co.  v. 

Texas.— Meyers  v.  Wood  (Tex.  Civ.  George  A.  Fuller  Co.,  Ill  Md.  321,  73 
App.).  65  S.  W.  671.  Atl.  738. 


§   113  Suretyship  and  Guaranty.  138 

all  to  be  done  in  strict  accordance  with  the  plans  and  specification, 
does  not  make  the  acceptance  by  the  architect  final  and  conclusive, 
and  will  not  bind  the  owner  or  relieve  the  contractor  from  the 
agreement  to  perform  according  to  plans  and  specifications." 

In  an  action  on  a  contractor's  land  to  recover  damages  for  the 
failure  of  a  contractor  to  complete  a  building,  an  allowance  for 
damages  on  account  of  defective  material  cannot  be  objected  to  on 
the  ground  that  the  architect  and  superintendent  accepted  the 
building,  where  it  appears  that  the  contractor  abandoned  the  build- 
ing before  completion  and  under  the  contract  there  could  be  no 
valid  acceptance  by  the  architect  until  final  completion.^* 

In  an  action  by  a  contractor  against  a  guaranty  company  on  its 
bond  as  surety  for  a  sub-contractor  for  damages  by  reason  of  the 
failure  of  the  sub-contractor  to  complete  the  work,  a  provision  in 
the  contract  that  the  contractor  should  take  charge  of  and  complete 
the  work  if  the  architect  should  certify  that  the  default  of  the  sub- 
contractor was  sufficient  grounds  to  do  so  applies  only  where  the 
latter  is  wanting  to  go  on  with  the  work,  but  is  not  doing  it  in  ac- 
cordance with  the  terms  of  the  contract.  It  has  no  application 
where  the  sub-contractor  throws  up  his  job  and  quits  the  work,  as 
in  such  a  case  the  contractor  is  justified  in  taking  charge  of  the 
work  and  completing  it.^^ 

§  113.  Extension  of  Time  of  Payment. — This  subject  has  been 
fully  treated  under  the  headings  of  the  liability  of  sureties,  and 
60  will  be  given  but  a  short  review  in  this  connection.  The  law  of 
suretyship  forbids  that  there  shall  be  between  debtor  and  creditor 
any  agreement  that  shall  imperil  the  rights  of  the  surety.  Thus, 
a  material  man  cannot  hold  the  sureties  liable  on  a  contractor's 
bond,  conditioned  that  the  contractor  shall  make  full  payment  to 
all  persons  supplying  material,  if  he  has  extended  the  time  of  pay- 
ment by  taking  notes  due  after  the  termination  of  the  contract,  as 
it  deprives  the  sureties  of  the  opportunity  to  compel  appropriation 
of  payments  as  made  for  claims  for  materials.^^ 

37.  Mercantile  Trust  Co.  v.  Hen-  39.  United  States  Fidelity  &  Guar- 
sey,  205  U.  S.  298,  51  L.  Ed.  811,  27  anty  Co.  v.  Probst,  TO  Ky.  Law  Rep. 
Sup.  Ct.  535,  affirming  27  App.  D.  C.    63,  97  S.  W.  405. 

210.  40.  United  States  v.  Trust  Co.,  89 

38.  Jenkins    v.    American    Surety    Fed.  921. 

Co.,  45  Wash.  573,  88  Pac.  1112.  See  §  42  et  seq. 


139 


Discharge  of  Surety. 


§   113 


In  general,  any  extension  of  time  upon  a  valid  consideration 
between  the  creditor  and  debtor,  without  the  surety's  consent,  will 
release  him.^^     But  when  the  sureties  sign  as  makers,  and  even  if 


41.  United  States.  —  Uniontown 
Bank  v.  Mackey,  140  U.  S.  220,  11 
Sup.  Ct.  844,  35  L.  Ed.  485;  McMullen 
V.  United  States,  167  Fed.  460,  93  C. 
C.  A.  96. 

Arkansas. — Ki&sire  v.  Plunkett- 
Jarrell  Grocer  Co.  (Ark.  1912),  145 
S.  W.  567. 

California. — Daneri  v.  Gazzola,  139 
Cal.  416,  73  Pac.  179. 

District  of  Columbia. — Walker  v. 
Washington  Title  Ins.  Co.,  19  App.  D. 
C.  575. 

Georgia. — Randolph  v.  Flemming, 
59  Ga.  776. 

Illinois. — Home  Nat.  Bank  of  Chi- 
cago V.  Estate  of  Waterman,  134  111. 
461,  29  N.  E.  503;  Highland  Park 
State  Bank  v.  Sheahen,  149  111.  App. 
.225. 

Indiana. — Post  v.  Losey,  111  Ind. 
74,  12  N.  E.  121. 

Iowa. — Morgan  v.  Thompson,  60 
Iowa  280,  14  N.  W.  30. 

Kansas.  —  Bank  of  Horton  v. 
Brooks,  64  Kan.  285,  67  Pac.  860; 
Rose  V.  Williams,  5  Kan.  483. 

Kentucky.  —  Farmers'  Bank  v. 
Wickliffe,  131  Ky.  787,  116  S.  W.  249. 

Maryland. — Berman  v.  Elm  Lorn 
&  Savings  Ass'n,  114  Md.  191,  78 
Atl.  1104. 

Massachusetts, — Wilson  v.  Foot, 
11  Met.  285. 

Minnesota. — Farmers'  Supply  Co. 
V.  Weiss,  115  Minn.  428,  132  N.  W. 
917. 

Missouri.  —  Johnson  v.  Franklin 
Bank,  173  Mo.  171,  73  S.  W.  191;  Bar- 
rett V.  Davis,  104  Mo.  549,  10  S.  W. 
377;  Steeile  v.  Johnson,  96  Mo.  App. 
147,  69  S.  W.  1065. 

Nebraska.  —  Shuler    v.    Hummel 


1  Neb.  (Unoff.)  204,  95  N.  W.  350; 
Dillon  V.  Russell,  5  Neb.  484. 

New  York. — National  Park  Bank 
V.  Koehler,  204  N.  Y.  174,  97  N.  E. 
468;  Ducker  v.  Rapp,  67  N.  Y.  4G4; 
Burfeind  v.  People's  Surety  Co.  of 
New  York,  139  App.  Div.  762,  124  N. 
Y.  Supp.  385;  Cohn  v.  Spizer,  129 
N.  Y.  Supp.  104. 

North  Carolina. — Revell  v.  Thrash, 
132  N.  C.  803,  44  S.  E.  596;  First  Na- 
tional Bank  v.  Swirk,  129  N.  C.  255, 
39  S.  E.  962;  Jenkins  v.  Daniels,  125 
N.  C.  161,  34  S.  E.  239. 

Ohio. — Miller  v.  Shein,  41  Ohio  St. 
376. 

Oregon, — Hoffman  v.  Hobighorst,49 
Ore.  379,  89  Pac.  952,  91  Pac.  20; 
Lazelle  v.  Miller,  40  Ore.  549,  67  Pac. 
307. 

Pennsylvania. — Grayson's  Appeal, 
108  Pa.  St.  581. 

Texas. — Mann  v.  Brown,  71  Tex. 
241,  9  S.  W.  Ill ;  First  National  Bank 
V.  Rusk  Pure  Ice  Co.  (Civ.  App. 
1911),  136  S.  W.  89;  Fambro  v.  Keith. 
57  Civ.  App.  302,  122  S.  W.  40;  Long 
V.  Patton,  43  Civ.  App.  11,  93  S.  W. 
519;  Carter-Battle  Grocer  Co.  v. 
Clarke  (Civ.  App.  1906),  91  S.  W.  880. 

Wisconsin. — Welch  v.  Kukuk,  128 
Wis.  419,  107  N.  W.  301;  Jaffray  v. 
Crane,  50  Wis.  349,  7  N.  W.  300. 

England. — Clarke  v.  Birley,  41  Ch. 
Div.  422. 

Indemnified  surety  not  released. 
First  National  Bank  v.  Davis,  87  I\Io. 
App.  242. 

Assignees  after  maturity  of  note 
cannot  recover  from  surety.  Hrff- 
man  v,  Hobighorst,  49  Ore.  379,  89 
Pac.  952.  91  Pac.  20. 

Question  of  extension  held  to  be 


§  113 


SUKETTSHIP    AND    GuAEANTY. 


14:(> 


the  payee  knows  that  they  are  only  sureties,  an  extension  of  the 
time  by  ''  the  makers  "  will  include  them,  so  they  will  not  be  dis- 
charged/^ And  a  mere  indulgence  to  the  debtor  by  the  creditor 
will  not  discharge  the  sureties/^  So  when  a  collateral  contract  is 
made  between  the  debtor  and  creditor  to  extend  the  time  of  pay- 
ment, which  is  to  relieve  the  surety,  and  the  creditor  stipulates 
that  it  shall  not  affect  the  original  contract,  the  collateral  contraet 
does  not  release  the  surety/* 

The  surety  is  discharged  when  the  creditor,  without  his  consent, 
gives  time  to  the  principal  debtor  for  a  valuable  consideration,  be- 
cause in  so  doing  he  deprives  the  surety  of  the  right  he  would  have 
had  from  the  mere  fact  of  entering  into  the  suretyship — namely,  to 
use  the  name  of  the  creditor  to  sue  the  principal  debtor — and  if 
this  right  be  suspended  for  a  day  or  an  hour,  and  not  injuring  the 
surety  at  all,  and  even  positively  benefiting  him,  nevertheless,  by 
the  principle  of  equity,  it  is  established  that  this  discharges  the 
surety  altogether,*^  and  also  security  given  by  a  third  party/"  And 
where  the  indorser  of  a  check  was  discharged  by  the  indorsee's 


for  .hiry.  Revell  v.  Thrash,  132  N. 
C.  803,  44  S.  E.  596. 

Attorney  no  authority  to  extend 
note  payable  to  client.  An  attorney 
retained  to  collect  a  debt  and  not 
authorized  to  release  it  or  any  party 
liable  to  his  client,  has'  not  express 
or  implied  authority  to  bind  him  by 
an  agreement  extending  the  time  of 
payment,  and  such  an  agreement  en- 
tered into  by  the  attorney  will  not 
discharge  the  surety.  Hall  v.  Pres- 
nell,  157  N.  C.  290,  72  S.  E.  985. 

In  Kansas,  prior  to  the  adoption 
of  the  Negotiable  Instruments  Law, 
it  was  the  well-settled  law  of  the 
State  that  an  extension  of  time  of 
payment  for  a  valuable  consideration 
paid  by  the  principal  of  a  note,  with- 
out the  consent  of  the  surety,  oper- 
ated to  discharge  the  surety.  Lane 
V.  Hyder  (Mo.  App.  1912),  147  S.  W. 
514. 

Ohio  Rey.  St,  §§  3175o,  3175p,  does 
not  apply  to  a  contract  for  extension 


of  time.  Richards  v.  Market  Exch. 
Bank  Co.,  81  Ohio  St.  348,  90  N.  E. 
1000. 

42.  Sawyer  v.  Campbell,  107  Iowa 
397,  78  N.  W.  56. 

43.  Grier  v.  Flitcraft,  57  N.  J.  Eq. 
556,  41  Atl.  425;  Wilson  v.  Whitmore, 
92  Hun  466,  36  N.  Y.  Supp.  550;  Wil- 
son V.  Webber,  157  N.  Y.  693,  51  N. 
E.  1094;  Dreeben  v.  First  National 
Bank  (Tex.  Civ.  App.  1906),  93  S.  W. 
510. 

44.  Kaufmann  v.  Rowan,  189  Pa. 
St.  121,  42  Atl.  25. 

See  §  116  herein,  as  to  reservation, 
of  remedies  against  surety. 

45.  Hallock  v.  Yankey,  102  Wis. 
41,  78  N.  W.  156;  Polak  v.  Everett,  1 
Q.  B.  D.  669;  Rees  v.  Berrington,  2 
Ves.  540;  Greenwood  v.  Francis 
(1899),  1  Q.  B.  312. 

46.  Jenkins  v.  Daniels,  125  N.  C. 
161,  34  S.  E.  239. 

See  §  42  et  seq. 


141j  Discharge  of  Surety.  §§  113a,  113b 

presenting  it  to  the  drawee  and  having  it  certified,  the  subsequent 
delivery  by  the  indorser  to  the  indorsee  of  a  memorandum  con- 
senting to  an  extension  of  time  for  payment  of  the  check  did  not 
renew  the  liability  of  the  indorser  as  a  surety,  being  without  con- 
sideration." 

A  decree  of  foreclosure  providing  that  the  sale  of  mortgaged 
land  shall  be  postponed  for  a  certain  length  of  time  is  not  an 
extension  of  the  time  of  payment  of  notes  to  secure  which  the  mort- 
gage was  given.  The  giving  of  time  by  such  decree  is  an  act  of 
the  court  and  is  not  by  an  agreement  of  the  parties  nor  is  it  made 
upon  any  consideration.^* 

§  113a.  Extension  of  Time  of  Payment — Where  Instrument 
Provides  for. — Where  the  terms  of  a  contract  definitely  contem- 
plate that  it  may  be  necessary  or  very  convenient  to  extend  the 
time  of  performance  thereunder,  as  in  the  case  of  a  contract  for 
the  construction  of  a  public  work,  the  sureties  will  be  taken  as 
having  contemplated  such  an  extension  as  also  permissible  against 
themselves.^^  So  where  a  note  contains  a  provision  allowing  an 
extension  of  time  for  its  payment  the  surety  will  not  be  released 
by  such  an  extension.^** 

§  113b.  Extension  of  Time  of  Payment — Evidence — Burden 
of  Proof. — A  surety  who  intends  to  rely  upon  the  defense  of  an 
extension  of  time  has  the  burden  of  proving  that  without  his 
knowledge  or  consent  a  valid  contract  upon  a  sufficient  considera- 
tion was  made  for  such  extension.  He  cannot  rest  his  defense 
upon  the  mere  presumption  of  such  an  extension  from  the  fact 
that  the  note  was  not  paid  until  some  time  after  maturity.  So 
the  court  declined  to  take  judicial  notice  of  an  alleged  custom 
of  banks  to  require  prompt  payment  of  notes  at  maturity,  or  else 

47.  First  National  Bank  of  Detroit  U.  S.  309,  317,  46  L.  Ed.  1177,  1181, 
V.   Currie,   147   Mich.   72,   110  N.  W.    22  Sup.  Ct.  R.  875. 

499.  50.  Winnebago  County  State  Bank 

48.  Kissire  v.  Plunkett-Jarrell  v.  Hiistel,  119  Iowa  115,  93  N.  W.  70; 
Grocer  Co.  (Ark.  1912),  145  S.  W.  First  National  Bank  v.  Wells,  98 
567.  Mo.   App.    573,   73    S.   W.    293;    Mer- 

49.  United  States  v.  McMullen,  chants'  National  Bank  v.  Worcester, 
222  U.  S.  460,  32  Sup.  Ct.  128,  56  L.  75  N.  H.  495,  77  Atl.  11. 

Ed.   . . . ;  United  States  v.  Freel,  186 


§  IH 


Suretyship  and  Guabanty. 


142 


to  have  tliem  extended,  and  from  such  notice,  together  with  the 
fact  that  the  hank  hrought  no  suit  upon  the  note,  and  that  it 
matured  four  years  prior  to  the  institution  of  the  action,  to  pre- 
sume that  there  was  a  valid  extension  of  the  time  of  payment  of 
the  note  in  question.^^ 


§  114.  Consideration. — To  have  the  effect  to  discharge  a  surety 
the  agreement  fur  extension  of  time  of  payment  made  by  the 
creditor  with  the  principal  debtor  without  the  consent  of  the 
surety,  must  be  upon  a  valid  consideration,  such  as  will  preclude 
the  creditor  from  enforcing  the  debt  against  the  principal  until 
the  time  expires.^^     But  the  mere  indulgence  of  the  principal 


51.  Livermore  v.  Ayres  (Kan.  S.  C. 
1911),  119  Pac.  549. 

See,  also,  Patnode  v.  Deschenes,  15 
N.  D.  100,  106  N.  W.  573. 

It  is  not  presumed  that  a  surety 
for  compensation  was  injured. 
United  States  v.  United  States  Fidel- 
ity &  Guaranty  Co.  (U.  S.  C.  C),  178 
Fed.  721. 

See,  also.  United  States  Fidelity  & 
Guaranty  Co.  v.  United  States,  178 
Fed.  692,  102  C.  C.  A.  192,  affirming 
172  Fed.  268. 

Payment  of  interest  in  advance  is 
prima  facie  evidence  that  time  has 
been  extended.  Revell  v.  Thrash, 
132  N.  C.  803,  44  S.  E.  596. 

52.  California. — ^Stroud  v.  Thomas, 
139  Cal.  274,  72  Pac.  1008. 

Georgia. — Benner  v.  Nelson,  57  Ga. 
433. 

Illinois.  —  Moy&es  v.  Schendorf, 
238  111.  232,  87  N.  E.  401,  affirming 
142  111.  App.  293;  Galbraith  v.  Fuller- 
ton,  53  111.  126. 

Indiana. — Hogshead  v.  Williams, 
55  Ind.  145;  Weaver  v.  Prebster,  37 
Ind.  App.  582,  77  N.  E.  674. 

Iowa. — Wendling  v.  Taylor,  57 
Iowa  354,  10  N.  W.  675. 

Maine.— Br- rtlett  v.  Pitman,  106 
Me.  117,  75  Atl.  379. 


Maryland. — Berman  v.  Elm  Loan 
&  Savings  Ass'n,  114  Md.  191,  78  Atl. 
1104. 

Missouri. — Williams  v.  Jenson,  75 
Mo.  681. 

New  Torlt. — Olmstead  v.  Latimer, 
158  N.  Y.  313,  53  N.  E.  5;  Schwartz  v. 
Smith,  143  App.  Div.  297,  128  N.  Y. 
Supp.  1. 

Pennsylvania. — Brubaker  v.  Oke- 
son,  36  Pa.  St.  519;  Snively  v.  Fisher, 
21  Pa.  Super.  Ct.  56. 

Texas.— Hunter  v.  Clark,  28  Tex. 
139. 

Virginia. — Atlantic  Trust  &  De- 
posit Co.  V.  Union  Trust  &  Title  Cor- 
poration, 110  Va.  286.  67  S.  E.  182. 

Wisconsin. — Fay  v.  Tower,  58  Wis. 
286,  16  N.  W.  558. 

See  §§42  et  s-eq.  as  to  extension  of 
time. 

For  tlie  payee  of  a  promissory 
note  to  release  one  of  tlie  makers, 
there  must  be  a  contract  to  that 
effect  founded  on  consideration,  ex- 
cept, of  course,  where  release  flows 
by  operation  of  law  from  the  con- 
tract of  the  payee.  Williams-Thomp- 
son Co.  V.  Williams  (Ga.  App.  1912), 
73  S.  E.  409,  holding  that  where  the 
payee  of  a  joint  promissory  note  exe- 
cutes  and    delivers    to   one    of   the 


143 


DiSCHAKGE    OF    SuRETY. 


115 


debtor  by  the  creditor,  without  a  binding  contract  therefor  based 
on  a  valid  consideration,  will  not  discharge  the  suretj.^^ 

A  partial  payment  of  a  note  before  maturity  is  a  good  considera- 
tion, to  extend  the  time  to  pay  the  balance,  and  will  discharge  the 
surety.^^  But  where  the  partial  j)ayment  is  on  a  note  overdue,  it 
is  not  a  valid  consideration  for  the  extension  of  the  time  to  pay 
the  balance,  and  such  payment  cannot  therefore  discharge  the 
surety.^*'  Nor  is  the  payment  of  overdue  interest  a  sufficient  con- 
sideration for  an  extension  of  time,"  though  the  payment  of  in- 
terest in  advance  is  held  to  be.^^  The  consideration  need  not  be 
based  upon  a  money  consideration  for  the  extension ;  a  mutual 
promise  is  a  sufficient  consideration.^^  And  it  is  not  necessary  that 
the  benefit  inures  to  the  surety  direct.  The  surety  may  ratify  an 
unauthorized  act  of  his  agent  in  signing  his  name  to  a  bond.*^" 


§  115.     Effect  on  Surety's  Contract  by  Taking  Usury  for  Ex- 
tension.— While  the  agreement  to  pay  usurious  interest  is  execu- 


makers  a  writing  purporting  to  re- 
lease him  from  all  liability  thereon, 
the  writing  is  ineffectual  for  that 
purpose  if  it  is  voluntarily  given 
without  legal  benefit  to  the  maker 
of  the  release  or  detriment  to  the 
person  in   whose  favor  it  is  made. 

53.  Georgia, — Reed  v.  Flipper,  47 
Ga.  273. 

Illinois. — Lyle  v.  Moore,  24  111.  95. 

Indiana. — Kirby  v.  Studebaker,  15 
Ind.  45. 

loTva. — Davis  v.  Graham,  29  Iowa 
514. 

Kansas. — Vancil  v.  Hogler,  27  Kan. 
407. 

Missonri. — Rucker  v.  Robinson,  38 
Mo.  154. 

New  York. — Lowman  v.  Yates,  37 
N.  Y.  601;  Schwartz  v.  Smith,  143 
App.  Div.  297,  128  N.  Y.  Supp.  1. 

Pennsylvania. — Love  v.  Brown,  38 
Pa.  St.  307. 

West  "Virginia,  —  First  National 
Bank  of  Cumberland  v.  Parsons,  45 
W.  Va.  688,  32  S.  E.  271. 

55.  Greely    v.    Dow,    2    Met.    176; 


Uhler  V.  Applegate,  26  Pa.  St.  140. 

56.  Davis  v.  Stout,  126  Ind.  12,  25 
N.  E.  862;  Ingles  v.  Sutliff,  36  Kan. 
444,  13  Pac.  828;  Petty  v.  Douglass, 
76  Mo.  70;  Schwartz  v.  Smith,  143 
App.  Div.  (N.  Y.)  297,  128  N.  Y. 
Supp.  1;  Halliday  v.  Hart,  30  N.  Y. 
474. 

67.  Stroud  v.  Smith,  139  Cal.  274, 
72  Pac.  1008;  Weaver  v.  Prebster, 
37  Ind.  App.  582,  77  N.  E.  674. 

58.  Highland  Park  State  Bank  v. 
Sheahen,  149  111.  App.  225. 

See  Steele  v.  Johnson,  96  Mo.  App. 
147,  69  S.  W.  1065. 

Where  debt  payable  in  monthly 
installments  an  agreement  to  pay 
interest  on  the  entire  sum  for  a 
stated  period  held  consideration  for 
promise  not  to  enforce  as  payable. 
Dearing  v.  Jordan  (Tex.  Civ.  App. 
ICIO),  130  S.  W.  876. 

59.  English  v.  Landon,  181  111. 
614,  54  N.  E.  911. 

60.  Drakely  v.  Gregg,  8  Wall.  (U. 
S.)  242,  19  L.  Ed.  409;  Lynch  v. 
Smyth,  25  Colo.  103,  54  Pac.  634. 


I    lit;  Suretyship  and  Guaranty.  14A 

tory  as  to  both  parties,  it  is  void  as  to  botli,  and  does  not  discliarge 
the  surety  on  the  debt.*^^  But  when  the  contract  is  executed  and  the 
creditor  has  accepted  the  usurious  interest  for  an  extension  of  pay- 
ment on  the  note,  the  surety  is  released.^^  But  it  is  said  where  the 
usury  causes  only  a  forfeiture  of  all  interest,  the  forbearance  is 
therefore  without  consideration,  and  the  surety  is  not  discharged/' 

§  1 1 6.  Effect  of  Creditor's  Reservation  of  His  Remedies 
Against  Surety, — The  creditor  may  reserve  his  remedies  against 
the  surety  at  the  time  of  the  extension,  and,  hence,  not  discharge 
the  surety.''*  So  an  agreement  upon  a  sufficient  consideration  by 
the  creditor  to  release  and  discharge  the  principal  debtor,  but  ex- 
pressly reserving  in  such  instrument  or  release  as  a  part  of  the 
same  transaction,  the  right  of  the  creditor  to  proceed  against  the 
surety  upon  the  bond  of  the  same  oibligation,  does  not  affect  in 
equity,  or  at  law,  the  continuing  liability  of  the  surety.''^ 

•Such  agreement  does  not  operate  as  an  absolute,  but  only  as  a 
conditional,  suspension  of  the  right.     The  stipulation  in  such  cases 

61.  Wittmer  v.  Ellison,  72  111.  301;  63.  Polkinghorne  v.  Hendricks,  61 
Galbraith   v.  Fullerton,   53   111.   126;    Miss.  366. 

Scott  V.  Hall,  6  B.  Mon.   (Ky.)    285;  64.  Illiuois.  —  Mueller     v.'   Dob- 

Pyle  V.  Clark,  3  B.  Mon.   (Ky.)  262;  scheutz,  89  111.  176. 

Tudor   V.    Goodloe,    1   B.   Mon.    (Ky.  Kansas.— Dean    v.    Rice,    63    Kan. 

322;    Polkinghorne  v.  Hendricks,  61  691,  66  Pac.  992. 

Miss.   366;    Mieswindle   v.   Jung,   30  Massachusetts.— Tobey     v.     Ellis, 

Wis.  361.  114  Mass.  120. 

62.  Georgia.— Camp  v.  Howell,  37  Missouri.— Rucker  v.  Robinson,  38 
Ga.  312.  Mo.  154. 

Illinois.— Myers   v.    Bank,    78    111.  New   York.— National    Park   Bank 

257;  Danforth  v.  Semple,  73  111.  170.  v.  Kuehler,  65  Misc.  R.  390,  121  N.  Y. 

ludiaua.— Lemmon  v.  Whitner,  75  Supp.    640,    affirmed    137    App.    Div. 

Ind.  318;  Cross  v.  Wood,  30  Ind.  378.  785,  122  N.  Y.  Supp.  490. 

lo-wa.— Corielle  v.  Allen,  13  Iowa  Pennsjhauia.— Hagey   v.   Hill,   75 

189.  Pa.  St.  108. 

Missouri.— Wild   v.   Home,  74   Mo.  England.— Kearsley     v.     Cole,     16 

551;   Stillwell  v.  Aaron,  69  Mo.  539.  Mees.   &  W.   128;    Eealer  v.   Mayor, 

New  York.- Church  v.  Maloy,   70  19  C.  B.  (N.  S.)  76. 

N.  Y.  63.  65.  Rockville     National     Bank     v. 

Ohio.— Blazer  v.  Beverly,  15  Ohio  Holt,  58  Conn.  526,  20  All.  669;   Du- 

St.  57.  pee  v.   Blake,  148   111.   453,   35   N.   E. 

West    Virginia. — Parsons    v.    Hor-  867;    Parraalee  v.  Lawrence,   44   111. 

rold,  46  W.  Va.  122,  32  S.  E.  1002;  405;  Jones  v.  Sarchett,  61  Iowa  520, 

Glenn  v.  Magan,  23  W.  Va.  467.  16  N.  W.  589. 


149  DlSCHAEGE  OF   SuRETY.  §§    117,  118 

is  treated  in  effect  as  if  it  was  made  in  express  terms  subject  to 
the  consent  of  the  surety,  and  the  surety  is  not  thereby  discharged.^ 
So  when  a  note  is  payable  at  a  fixed  future  time,  the  surety  is  not 
discharged,  if  the  right  of  an  immediate  action  is  reserved  upon 
the  debt,  when  it  is  extended  by  the  creditor." 

§  117.  Extension  With  Consent  of  Surety. — Whenever  the 
creditor  gives  time  and  makes  a  new  contract  with  the  principal 
debtor,  of  which  new  contract  the  surety  has  knowledge  and  to 
which  he  assents,  he  is  not  thereby  discharged.®^  By  the  common 
law,  when  action  is  upon  a  specialty  contract,  the  surety  cannot 
set  up  a  parol  agreement  to  enlarge  the  time  without  his  consent 
as  a  defense,  for  such  is  for  a  court  of  equity.®* 

A  surety  cannot  be  discharged  where  he  induces  the  extension 
of  time  upon  a  valuable  consideration,  or  connives  with  that  in- 
tention.'^" 

§  118.  Waiver  of  Discharge. — The  surety  may  waive  his  dis- 
charge. Thus,  after  his  discharge  with  knowledge  that  he  is  no 
longer  liable,  if  he  promises  to  pay  the  debt  he  is  then  bound  for 

66.  Calvo  V.  Davies,  73  N.  Y.  217 ;  New  Hampshire. — Crosby  v.  Wyatt, 
Morgan  v.  Smith,  70  N.  Y.  537.  10  N.  H.  318. 

67.  United  States. — United  States  New  York. — Klein  v.  Long,  27 
V.  Hodge,  6  How.  279,  12  L.  Ed.  437.  App.  Div.  158,  50  N.  Y.  Supp.  419. 

New    Hampshire. — Hutchinson    v.  Texas. — Trotti    v.    Gaar,    Scott    & 

Wright,  61  N.  H.  108.  Co.   (Civ.  App.  1910),  126  S.  W.  670. 

New    York.  —  Fox    v.    Parker,    44  Vermont — Corlies  v.  Estes,  31  Vt. 

Barb.  541.  653. 

Vermont. — Viele  v.  Hoag,  24  Vt.  46.  England.  —  Smith    v.    Winter,    4 

Wisconsin. — Paine  v.  Voorhees,  26  Mees.  &  W.  454. 

Wis.  522.  Performance   of  condition   snbse- 

England.— Price  v.  Barker,  4  El.  &  qnent  by  sureties  in  accordance  with 

B.  760;  Wyke  v.  Rogers,  1  DeGex,  M.  an  agreement  for  extension  entered 

&  G.  408 ;  Webb  v.  Hewitt,  3  Kay  &  into  by  them  will  release  them  where 

J.   438;    Owen   v.   Houran,   13   Beav.  so  provided.    Mockett  v.  Boston  Inv. 

196.  Co.,  2  Neb.    (Unoffi.)    500,  89  N.  W. 

68.  Connecticut.  —  Rockville     Nat.  283. 

Bank  v.  Holt,  58  Conn.  526,  20  Atl.  69.  Loop  v.  United  States,  3  Mason 

669;  Adams  v.  Way,  32  Conn.  160.  446;  Wittmer  v.  Ellison,  72  111.  301; 

Maine.— Osgood  v.   Miller,  67  Me.  Davy  v.  Pendergrass,  5  Bam.  &  AI. 

174.  187;  Parker  v.  Watson,  8  Exch.  409. 

Missouri.— Bruegge  v.  Behard,  89  70.  Williams  v.  Gooch,  73  111.  App. 

Mo.  App.  543.  557. 
10 


li 


§§  119,  120       SUEETYSHIP  AND  GuAEANTY.  14S 

its  paymontJ^  iSo,  if  a  surety,  after  time  given  by  the  creditor  to 
the  principal,  promises  to  pay  the  debt  with  knowledge  of  the  fact, 
he  is  liable  without  any  new  consideration  for  the  promise.  He 
will  be  bound  upon  the  original  consideration,  and  not  upon  the 
new  promise.^^ 

§  119.  Extension  Must  Be  for  a  Time  Certain.— In  order  that 
an  extension  of  time  of  payment  may  release  a  surety,  it  must  ap- 
pear that  it  was  for  a  time  certain  and  without  the  surety's  con- 
sent.'^ iSo  an  agreement  for  the  extension  of  time  between  the 
payee  and  principal  maker  of  a  promissory  note  must  be  for  a 
definite  time  in  order  that  it  may  work  a  release  of  the  surety  '' 
it  must  not  only  be  binding  in  law,  but  time  of  extension  must  be 
precisely  fixed,^^  because  if  a  definite  time  is  not  fixed,  the  cred- 
itor can  proceed  at  any  time  to  collect  the  debt. 

§  120.  Giving  Time  to  One  of  Two  or  More  Sureties. — Giving 
time  to  one  of  two  or  more  sureties  on  a  promissory  note  does  not 
discharge  the  others.''*^  Because  the  mere  giving  of  time  to  one  of 
two  or  more  obligors  whose  obligations  are  equal,  will  not  so 
operate."  For  giving  time  by  oral  agreement  to  one  of  two 
sureties  cannot  have  any  greater  legal  eft'ect  than  a  covenant  by  a 

71.  First  National  Bank  v.  Whit-  Indiana. — Weaver  v.  Prebster,  37 
man,    66   111.    33;    Rindskopf   v.    Do-    Ind.  App.  582,  77  N.  E.  674. 

man,  28  Ohio  St.  516.  Maryland.— Hayes  v.  Wells,  34  Md. 

72.  Bank  v.   Johnson,  9  Ala.  622;    512. 

Sigourney    v.     Wetherell,     6     Mete.  Mississippi. — Worthington  v.  Gay, 

(Mass.)  553;  Porter  v.  Hodenpuyl,  9  7  Sm.  &  M.  522. 

Mich.  11;    Fowler  v.  Brooks,  13  N.  North  Carolina. — Ravell  v.  Thrash, 

H.  240.  132  N.  C.  803,  44  S.  E.  596;  Benedict 

73.  Gardner  v.  YvTatson,  13  111.347;  v.  Jones,  129  N.  C.  475,  40  S.  E.  223. 
Flynn  v.  Mudd,  27  111.  323;  Olson  v.  Pennsylvania. — Miller  v.  Stern,  2 
Chism,  21  Ind.  40.  Pa.  St.  286. 

See    Dreehen    v.    First    National  Shortness   of   the   time   is   imma- 

Bank  (Tex.  Civ.  App.  1906),  93  S.  W.  terial  if  fixed.    Revell  v.  Thrash,  132 

510.  N.  C.  803,  44  S.  E.  596. 

74.  Morgan  v.  Thompson,  60  Iowa  76.  Draper  v.  Wild,  13  Gray 
280,  14  N.  W.  306;  Jenkins  v.  Clark-  (Mass.)  580. 

Bon,  7  Ohio  72.  See    §    133    as    to    release    of   co- 

75.  Georgia.— Woolfolk    v.    Plant,   surety. 

46  Ga.  422.  77.  Dunn  v.  Slee,  Holt,  N.  P.  399, 1 

Moore  2. 


147!  DlSCHAEGE    OF    SuRETY.  §    121 

grantor  not  to  sue  for  a  specified  time,  one  of  two  or  more  joint 
debtors.  Such  covenant  is  not  a  release,  and  it  furnishes  no  de- 
fense to  the  other  debtors.^*  Where  a  note  is  given  by  several 
parties,  though  part  of  them  are  in  fact  sureties  for  the  others, 
yet  if  that  does  not  appear  upon  the  face  of  the  note,  the  payee 
does  not  discharge  the  sureties  by  giving  time  to  the  principal 
debtor,  unless  he  has  knowledge  at  the  time  of  so  doing  that  the 
other  makers  were  sureties.''®  But  if  a  judgment  creditor  extends 
the  time  for  payment  as  to  one  of  two  judgment  debtors,  the  cred- 
itor knowing  that  the  other  was  surety  for  the  one  to  whom  he  ex- 
tended the  time,  the  surety  is  discharged.^" 

§  121,  What  is  a  Promise  of  Extension. — A  promise  of  exten- 
sion upon  a  note,  in  order  to  discharge  the  surety  thereto,  must  be 
such  as  will  prevent  the  holder  from  bringing  action  against  the 
principal.  So  taking  interest  in  advance  will  not  constitute  such 
promise.^^  In  order  to  discharge  the  surety  the  contract  must  be 
such  as  will  prevent  the  holder  from  suing  the  principal  'before  the 
expiration  of  the  time  alleged  for  the  extension.^^  This  is  on  the 
principle  that  an  express  covenant  not  to  sue  the  principal  debtor, 
for  a  certain  or  prescribed  time,  will  not  discharge  the  surety,  be- 
cause, notwithstanding  the  agreement,  suit  may  be  brought  at  any 
time,  and  the  covenant  is  no  bar,  but  only  gives  the  covenantee  an 
action  for  damages.^'^  When  time  is  given  to  the  principal  debtor 
by  a  valid  agreement  which  ties  up  the  hands  of  the  creditor,  the 
surety  is  discharged.  For  if,  notwithstanding  such  contract,  it 
were  competent  to  sue  the  surety,  the  latter  would  immediately 
have  his  remedy  over  against  the  debtor.^* 

In  order  to  release  the  surety  there  must  be  an  actual  mutual 

78.  Shed  v.  Pierce,  17  Mass.  628;  E.  674;  Blackstone  Bank  v.  Hill, 
Wilson  V.  Foot,  11  Met.  (Mass.)  285.  10    Pick.     (Mass.)     153;     Elliott    v. 

79.  Mullendore  v.  Wertz,  75  Ind.  Quails,  149  Mo.  App.  482,  130  S.  W. 
431 ;  Wilson  v.  Foot,  11  Mete.  (Mass.)  474. 

285.  83.  Perkins     v.     Gilman,     8     Pick. 

80.  Gibson  V.  Ogden,  100  Ind.  20.  (Mass.)    229;    Fallerm   v.  Valentine. 

81.  Hosea  v.  Rowley,  65  Mo.  357;  11  Pick.  156;  Doe  v.  Tuttle,  4  Mass. 
Oxford     Bank     v.     Lewis,     8     Pick.  414. 

(Mass.)  458.  84.  Clippinger   v.   Cress,   2   Watts 

82.  Highland  Park  State  Bank  v.  (Pa.)  45;  First  Nat.  Bank  v.  Leavitt, 
Sheehan,  149  111.  App.  225;   Weaver    65  Mo.  562. 

T.  Prebster,  37  Ind.  App.  582,  77  N. 


§  123  Suretyship  and  Guaranty.  14rS 

intention  constituting  an  agreement  ^^  which  is  definite,*^  and  bind- 


ing. 


§  122.  Accepting  New  Note. — The  surety  is  discharged  when 
the  creditor  accepts  a  new  note  payable  at  a  future  time,  because 
if  the  agreement  to  extend  is  not  expressed  it  will  be  implied.*' 
The  taking  two  renewal  notes  from  the  principal  debtor  by  way 
of  conditional  payment  of  an  existing  note  and  receipt  of  interest 
in  advance  upon  it,  amounts  to  an  extension  of  the  original,  and 
effects  the  discharge  of  the  surety.^^  The  taking  of  a  new  note  im- 
plies an  agreement  to  give  time  on  the  old.^"  The  acceptance  by 
the  creditor  of  a  valid  obligation  payable  in  the  future,  operates  to 
suspend  all  rights  of  action  on  the  consideration  for  which  it  is 
given  until  the  time  fixed  for  the  payment  of  the  obligation,  and, 
hence,  discharges  the  surety  on  the  original  obligation.^^ 


85.  Highland  Park  State  Bank  v. 
Sheahen,  149   111.  App.   225. 

86.  Berman  v.  Elm  Loan  &  Sav- 
ings Ass'n,  114  Md.  191,  78  Atl.  1104. 

87.  Denver  Engineering  Works  v. 
Elkins,  179  Fed.  922,  judgment  re- 
versed on  question  of  power  of  fed- 
eral court  as  to  report  of  a  referee; 
181  Fed.  684,  105  C.  C.  A.  1; 
Kissire  v.  Plunkett-Jarrell  Grocer 
Co.  (Ark.  1912),  145  S.  W.  567. 

Must  be  valid  and  enforceable. 
Burfeind  v.  People's  Surety  Co.  of 
New  York,  139  App.  Div.  (N.  Y.)  762, 
124  N.  Y.  Supp.  385. 

88.  Hubbard  v.  Gurney,  64  N.  Y. 
457;  Place  v.  Mcllvain,  38  N.  Y.  96; 
Fellows  v.  Prentiss,  3  Denio  512. 

89.  Robinson  v.  Offcut,  7  T.  B. 
Mon.  (Ky.)  540;  First  Nat.  Bank  v. 
Leavitt,  65  Mo.  562 ;  Greene  v.  Bates, 
74  N.  Y.  33;  Walters  v.  Swallow,  6 
Whart.  (Pa.)   446. 

90.  Appleton  v.  Parker,  15  Gray 
(Mass.)  173;  Myers  v.  Welles,  5  Hill 
(N.  Y.)  463;  Slagle  v.  Pow,  41  Ohio 
St.  603;  Weed  Sewing  Mach.  Co.  v. 
Aberreicht,  38  Wis.  325. 


91.  Georgia. — Simmons  v.  Guise, 
46  Ga.  473. 

Illinois. — Parlin  &  Orendorff  Co.  v. 
Hutson,  198  111.  389,  65  N.  E.  93. 

Indiana. — Rittenhouse  v.  Kemp, 
37  Ind.  258. 

Iowa. — Reints  &  De  Buhr  v.  Uhlen- 
hopp,  149  Iowa  284,  128  N.  W.  400; 
Chickasaw  County  v.  Pitcher,  36 
Iowa  593. 

Missouri. — Smarr  v.  Schnitter,  38 
Mo.  478. 

New  York. — Greene  v.  Bates,  74  N. 
Y.  333;  Union  Trust  Co.  v.  McCrum, 
145  App.  Div.  409,  129  N.  Y.  Supp. 
1078. 

Texas. — Westbrook  v.  Belton  Na- 
tional Bank,  97  Tex.  246,  75  S.  W. 
842. 

Virginia. — Stuart  v.  Lancaster,  84 
Va.  772,  6  S.  E.  139. 

Wisconsin. — Omaha  National  Bank 
V.  Johnson,  111  Wis.  372,  87  N.  W. 
237. 

England. — Baker  v.  Walker,  14 
Mees.  «6;  W.  465;  Walton  v.  Mascall. 
13  Mees.  &  W.  452;  Price  v.  Price, 
16  Mees.  &  W.  232. 


149  DiSCHAKGJi    OF    SuRETY.  §    123 

However,  there  are  decisions  whicli  hold  that  the  mere  fact  that 
the  creditor  takes  a  new  note  payable  after  maturity  of  the  orig- 
inal debt,  raises  no  implication  in  law  that  he  agrees  to  give  time 
for  the  payment  of  the  original  note,  and  that  the  agreement  to 
give  time  must  be  proved  as  a  fact.^^  Again  where  the  new  note  is 
not  enforceable,  as  where  it  was  signed  by  one  as  attorney  for  an- 
other when  such  person  had  no  authority  to  so  sign  the  surety  is 
not  released.^^  If  the  surety  consents  to  the  acceptance  of  the  new 
note  and  surrender  of  the  old  one  he  of  course  by  assenting  thereto 
is  not  released  from  liability.  And  if  at  the  time  of  so  consent- 
ing he  has  knowledge  of  a  defense  to  the  original  note,  such  as  a 
diversion  of  the  same  from  the  purpose  for  which  it  was  given,  he 
will  not  be  permitted  to  avail  himself  of  that  defense  to  an  action 
on  the  renewal  note.^* 

And  where  a  mortgage  is  given  by  a  person  to  secure  all  debts 
which  may  become  due  from  the  corporation  the  fact  that  new 
notes  are  given  in  renewal  of  others  without  the  knowledge  of  the 
mortgagor  will  he  no  defense  in  an  action  to  enforce  such  new  notes 
against  the  property.^" 

If,  however,  the  new  notes  are  not  a  part  of  the  same  transac- 
tion in  connection  with  which  the  bond  was  given  the  security 
thereon  is  not  discharged.^® 

§  123.  Taking  Collateral  Security. — Taking  collateral  security 
by  the  creditor  or  holder  of  the  note  in  addition  from  the  maker  of 
the  instrument,  does  not  release  the  indorser  or  surety.  And  it  is 
not  material  of  what  character  the  collateral  security  may  be.  It 
may  consist  of  promissory  notes  not  due,  a  mortgage  payable  in  the 
future,  or  anything  else,  which  does  not  affect  the  remedy  on  the 
original  contract.  This  can  only  be  done  by  agreement  for  a  valu- 
able consideration.  The  remedy  on  the  collateral  instrument  is 
wholly  immaterial  unless  it  discharges  or  postpones  the  original 

92.  Weakley  v.  Bell,  9  Watts  M.  Baut  v.  Donly,  160  Ind.  670,  67 
(Pa.)    273;    Shaw  v.  Church,  39   Pa.    N.  E.  503. 

St.  226;  Bing  v.  Clarkson,  2  Barn.  &  95.  Sather  Banking  Co.  v.  Brigga 

Cr.  14.  Co.,  138  Cal.  724,  72  Pac.  352. 

See,  also,  Wills  v.  Hurst,  101  Tenn.  96.  Title  Guaranty  &  Surety  Co.  v. 

656,  49  S.  W.  740.  Baglin,    178   Fed.   682,   102   C.   C.   A. 

93.  Corydon  Deposit  Bank  v.  Mc-  182,  affirming  Baglin  v.  Title  Guar- 
Clure,  140  Ky.  149,  130  S.  W.  971.  anty  &  Surety  Co.,  166  Fed.  356. 


§    124  SUKETYSIIIP    AND    GuAEANTY.  150 

obligation.  Thus,  taking  a  mortgage  from  the  principal  debtor 
as  to  which  time  is  given  for  payment,  but  which  is  only  collateral 
security  for  the  debt,  and  there  being  no  agreement  for  a  valuable 
consideration  to  give  time  to  the  debtor  personally,  does  not  dis- 
charge the  sureties."  A  holder  of  a  bill  of  exchange,  by  taking  col- 
lateral security  of  the  drawer,  not  giving  time,  does  not  release  the 
endorser.^^  So  if  a  second  bond  is  given  to  the  obligee  merely  as  a 
collateral  security  for  the  prior  bond,  such  bond  will  not  be  deemed 
extended,  because  that  which  is  taken  merely  as  collateral  security 
has  time  to  run  before  it  falls  due.^^ 

So  the  taking  of  notes  merely  as  eollateral  will  not  release  the 
surety.^ 

Likewise,  the  acceptance  of  bonds  from  sub-contractors  will  not 
operate  as  a  discharge.^ 

On  the  other  hand  a  creditor  is  under  no  obligation  to  accept 
collateral  security  when  oifered  by  the  principal  debtor  and  a  re- 
fusal to  accept  the  same  will  not  discharge  the  surety.^ 

Where  a  deed  is  given  to  a  surety  as  an  additional  security  suf- 
ficient consideration  is  shown  therefor  where  it  appears  that  the 
company  has  already  advanced  money  in  connection  with  the  bond 
and  contract  it  secures.* 

§  124.     Personal  Judgment  for  Deficiency  in  Foreclosure. — It  is 

the  rule  that  a  judgment  or  decree  against  one  of  two  or  more  joint 
principals  or  sureties  releases  the  others.  A  deficiency  decree  in 
foreclosure  proceedings  is,  in  effect,  a  personal  judgment  upon  the 
note,  and  where  the  court  renders  judgment  against  one  of  several 
makers,  this  extinguishes  the  creditor's,  or  mortgagee's  right,  as  to 

97.  United  States  v.  Hodge,  6  How.  1.  Kingman-St.  Louis  Implement 
(U.  S.)  279,  12  L.  Ed.  437;  German  Co.  v.  McMaster,  118  Mo.  App.  685, 
Savings  Inst.  v.  Vahle,  28  111.  App.    94  S.  W.  819. 

557;  Brengle  v.  Bushey,  40  INId.  141;  2.  Equitable  Trust  Co.  v.  Aetna 
Burke  v.  Crurer,  8  Tex.  66.  Indemnity  Co.  (U.  S.  C.  C),  168  Fed. 

98.  Hurd  v.  Little,   12  Mass.   502;    433. 

James  v.  Badger,  1  Johns.  Cas.   (N.  3.  Berlin   National  Bank   v.   Guay 

Y.)  131.  (N.  H.  1911),  81  Atl.  475,  citing  and 

99.  Merriman  v.  Barker,  121  Ind.  quoting  from  Morrison  v.  Bank,  65 
74,  22  X.  E.  992;  Remsen  v.  Graves,  N.  H.  253,  280,  20  Atl.  300,  303,  9  L. 
41    X.   Y.   471 ;    Clarke  v.   Birley,   41  R.  A.  282,  23  Am.  St.  Rep.  39. 

Ch.  D.  422.  Compare  Haubest  v.  4.  Empire  State  Surety  Co.  v.  Bal- 
Kraus,  4  Phil.  119.  lou  (Wash.  1911),  118  Pac.  923. 


151  Dtschakgk  of  Surety.  §§   125,  126 

the  others.  Even  if  the  note  is  joint  and  several,  and  where  it 
may  be  sued  severally,  yet  where  all  are  sued  as  joint  makers  and 
judgment  is  taken  against  one,  the  other  makers,  by  this  action, 
are  released.^  Thus,  one  who,  though  made  a  party  defendant  to 
foreclosure  proceedings,  is  a  joint  maker  of  the  secured  note,  and 
is  not  held  in  the  deficiency  decree,  will  be  released,  although  as 
between  him  and  the  party  held  by  the  judgment  in  the  decree  he 
is  liaible  on  the  note,  as  surety.^ 

§  125,  Fraud — Extension  of  Time. — A  fraud  of  the  principal 
debtor  unknown  to  the  creditor,  extending  the  time,  will  not  re- 
lease the  surety.  Thus,  where  the  maker  of  a  promissory  note  pro- 
cures its  surrender  and  extension  of  time  by  giving  a  new  note  to 
which  he  has  forged  the  sureties'  name,  this  will  not  discharge  the 
sureties  on  the  surrendered  note,  because  the  note  had  never  been 
legally  extended  as  to  payment.^  But  if  the  payee  had  discovered 
the  fraud,  and  holds  the  substituted  note  without  informing  the 
sureties  of  the  fraud,  and  they  are  injured,  then  their  liability 
ceases.  In  such  case  the  creditor  waives  the  fraud  and  holds  new 
note  for  the  debt.^  So  taking  a  note  with  forged  indorsements,  in 
renewal  of  another  note  discounted  at  a  bank,  does  not  extinguish 
the  prior  note,  and,  hence,  the  sureties  on  it  are  not  discharged.^ 

§    126.     Fraud  to   Induce   Surety   to   Sign   Contract. — If   the 

surety  is  induced  to  sign  a  contract  by  fraud  of  the  obligee,  he  is 
not  liable.  If  the  creditor  makes  use  of  any  artifice  to  deceive  the 
surety,  and  he  is  thereby  deceived  and  signs  the  instrument,  the 
creditor  cannot  hold  him  liable.^**  And  so  if  the  surety  is  induced 
to  become  such  by  fraud  perpetrated  on  him  by  the  creditor,  as  by 
false  representations  as  to  material  facts,  the  surety  is  not  liable.^^ 

5.  Lawrence  v.  Beecher,  116  Ind.  8.  Kirby  v.  Landis,  54  Iowa  150,  6 
312,  19  N.  E.  143.  N.  W.  173. 

6.  Travelers  Ins.  Co.  v.  Mayo,  170  9.  Ritter  v.  Singmaster,  73  Pa.  St. 
lU.  498,  48  N.  E.  917.  400. 

7.  Hubbard  v.  Hart,  71  Iowa  668,  10.  Roper  v.  Sangamon  Lodge,  91 
33  N.  W.  233.  111.  518;    Ham  v.  Greve,  34  Ind.  18; 

See,  also,  Wheeler  v.  Traders'  De-  Trammell  v.  Swan,  25  Tex.  473. 
posit  Bank,  107  Ky.  653,  55  S.  W.  552,        11.  Folmar  v.  Siler,  132  Ala.  297,  31 

49  L.  R.  A.  315,  and  note.  So.  719;  Evans  v.  Keeland,  9  Ala.  42; 

But  see  Red  River  National  Bank  Barnes    v.    Century    Savings    Bank, 

V.   Bray    (Tex.   Civ.  App.   1911),   132  149  Iowa  367,  128  N.  W.  541;  Haworth 

S.  W.  968.  V.  Crosly  &  Henshaw,  120  Iowa  612. 


§  126  Suretyship  and  Guaranty.  152 

If  the  creditor  knows  or  has  good  grounds  for  believing  that  the 
surety  has  been  deceived  or  misled,  or  that  he  was  induced  to  enter 
into  tlie  contract  in  ignorance  of  facts  materially  increasing  the 
risks  of  which  ho  has  knowledge,  and  he  has  an  opportunity  before 
accepting  his  undertaking  to  inform  him  of  such  facts,  good  faith 
and  fair  dealing  demand  that  he  should  make  such  disclosure  to 
him.  If  he  accepts  the  contract  without  doing  so,  the  surety  mav 
afterwards  avoid  such  execution  of  the  instrumrent  as  a  fraud. ^^ 
However,  if  there  is  nothing  in  the  circumstxinces  to  indicate  that 
the  surety  is  being  misled  or  deceived,  or  that  he  is  entering  into 
the  contract  in  ignorance  of  facts  materially  affecting  its  risk,  the 
creditor  is  not  bound  to  seek  him  out  or,  without  being  applied  to, 
communicate  to  him  information  as  to  facts  within  his  knowledge. 
In  such  case  he  may  assume  that  the  surety  has  obtained  informa- 
tion for  his  guidance  from  other  sources,  or  that  he  has  chosen  to 
assume  the  risks  of  undertaking,  whatever  they  may  be.^^ 

A  surety  or  guarantor  cannot  interpose  the  fraudulent  or  false 
representation  of  his  principal  as  a  defense  to  the  payment  of  a 
note,  without  connecting  the  payee  with  such  representations,^^  iSo 
misrepresentations  made  to  induce  a  surety  to  sign  a  bond,  that  a 
third  person  is  to  be  a  principal  therein,  if  unknown  to  the  obligee, 

94  N.  W.  1098;    Bank  of  Monroe  v.  See  §§  140-142  herein,  where  this 

Anderson  Bros.  Min.  &  Ry.  Co.,  65  subject  is  more  fully  considered. 

Iowa  692,  22  N.  W.  929;  Waterbury  13.  Bank  of  Monroe  v.   Anderson 

V.  Andrews,  67  Mich.  281,  34  N.  W.  Bros.  Min.  &  Ry.  Co.,  65  Iowa  692,  22 

575;  Atlantic  Trust  &  Deposit  Co.  v.  N.  W.  929;  Graves  v.  Bank,  10  Bush 

Union    Trust   &    Title    Corporation,  (Ky.)  23;  Railton  v.  Mathews,  10  CI. 

110  Va.  286,  67  S.  E.  182.  &  F.  934 

A  surety  who  read  the  instrument  14.  Arkansas. — Stiewell  v.  Ameri- 

cannot   claim  he   was   misled  as   to  can  Surety  Co.,  70  Ark.  512,  68  S.  W. 

the  nature  thereof.    Bower  v.  Jones,  1021. 

26  S.  D.  414,  128  N.  W.  470.  Illinois.— Ladd    v.    Board,    80    111. 

A  statement  that  surety  "  took  no  233. 

risk "   is    not    material.     First   Na-  Indiana. — Lucas     v.     Owens,     113 

tional   Bank   v.   Johnson,   133   Mich.  Ind.  521,  16  N.  E.  196. 

700,  95  N.  W.  975,  10  Det.  Leg.  N.  New  York.— Dunfee  v.  Dunfee,  129 

403.  N.  Y.  Supp.  142. 

12.  Booth   V.    Storrs,   75    111.   438;  Pennsylvania.  —   Rothermal       v. 

Ham  V.  Greve,  34  Ind.  18;  Pidock  v.  Hughes,  134  Pa.  St.  510,  19  Atl.  677. 

Bishop,  3  Barn.  &  Cr.  605;   Owen  v.  Virgrinia. — Atlantic    Trust    &    De- 

Homan,  4  H.  L.  Cas.  997;   Hamilton  posit  Co.  v.  Union  Trust  &  Title  Cor- 

T.  Watson,  12  CI.  &  F.  109.  poration,  110  Va.  286,  67  S.  E.  182. 


153 


Discharge  of  Surety. 


§  120 


will  not  defeat  his  right  to  recover  against  the  sureties.'^  The 
surety  is  not  relieved  if  the  false  representations  are  made  by  a 
third  person. ^^  But  in  order  to  discharge  a  surety  it  is  held  not 
necessary  that  the  creditor  have  knowledge  of  the  falsity  of  a  rep- 
resentation which  he  makes  as  a  fact  and  by  which  he  induces  the 
assumption  of  the  relation."  An  innocent  false  representation 
under  such  circumstances,  which  is  the  assertion  of  a  mere  opinion 
or  the  existence  of  a  fact  not  derived  from  investigation  or  made 
under  such  circumstances  as  to  suggest  such  derivation  but  enter- 
tained and  made  through  ordinary  negligence,  is  immaterial.^* 

The  defense  that  false  representations  were  made  and  that  de- 
fendant relied  upon  such  representations  and  was  induced  to  sign 
as  surety  by  reason  of  his  belief  in  them  is  not  destroyed  by  the 
fact  that  he  may  have  had  knowledge  of  certain  facts  which  might 
have  put  him  upon  inquiry.^* 


15.  Stiewell  v.  American  Surety 
Co.,  70  Ark.  512,  68  S.  W.  1021. 

"  It  is  the  business  of  the  surety 
to  ascertain  who  the  true  principal 
is  and  any  false  representations 
made  to  induce  hioi  to  sign  the  obli- 
gation as  to  the  principal,  if  un- 
known to  the  obligee,  will  not  de- 
feat his  right  to  recover  against  the 
sureties."  Williams  v.  Morris  (Ark. 
1911),  138  S.  W.  464,  citing  Stiewell 
V.  American  Surety  Co.,  70  Ark.  512, 
68  S.  W.  1021;  Doane  v.  New  Or- 
leans, etc.,  Tel.  Co.,  11  La.  Ann.  504; 
Jacobs  V.  Curtis,  67  Conn.  497,  35 
Atl.  501,  32  Cyc.  64. 

Signature  not  made  a  precedent. 
One  who  signs  a  bail  bond  as  surety, 
relying  upon  a  representation  that 
another  will  also  sign  it  as  surety, 
but  who  does  not  make  such  signa- 
ture a  condition  precedent  to  the 
delivery  or  taking  effect  of  the  bond, 
cannot,  after  the  instrument  has 
been  filed  and  the  prisoner  released, 
escape  liability  because  such  other 
signature  was  not  obtained.  Sellers 
V.  Territory  (Okla.  1911),  121  Pac. 
228. 


16.  Brown  v.  Davenport,  76  Ga. 
799 ;  Soog  v.  State,  39  N.  J.  L.  135. 

17.  Milan  Bank  v.  Richmond,  235 
Mo.  532,  139  S.  W.  352. 

As  to  a  holder  in  good  faith,  surety 
held  not  released.  Lovelace  v.  Love- 
lace, 136  Ky.  452,  124  S.  W.  400. 

18.  Brillion  Lumber  Co.  v.  Bar- 
nard, 131  Wis.  284,  111  N.  W.  483. 

See  Tolerton  &  Stetson  Co.  v. 
Roberts,  115  Iowa  474,  88  N.  W.  966, 
as  to  a  statement  which  is  a  misin- 
terpretation of  law. 

19.  Milan  Bank  v.  Richmond,  235 
Mo.  532,  139  S.  W.  352,  in  which  case 
it  was  said:  "Even  in  actions  for 
fraud  and  deceit,  '  a  man  to  whom  a 
particular  and  distinct  representa- 
tion has  been  made  is  entitled  to 
rely  on  the  representation  and  need 
not  make  further  inquiry,  although 
there  are  circumstances  in  the  esse 
from  which  an  inference  inconsist- 
ent with  the  representation  might  be 
drawn.'  "  Per  Blair,  C,  citing  Kerr 
on  Fraud,  80;  Cottrill  v.  Krum,  100 
Mo.  405. 


§    127  SuKETTSIilP    AND    GUARANTY.  154" 

Where  a  married  woman  signs  a  note  at  the  request  of  her  hus- 
band and  gives  it  to  him  it  is  held  that  she  makes  him  her  agent 
to  deliver  it  and  is  bound  by  the  representations  he  made  as  her 
agent.^"* 

A  discharge  in  bankruptcy  under  the  Federal  Bankruptcy  Act 
is  held  not  to  relievo  against  a  liability  incurred  by  obtaining  a  per- 
son to  act  as  surety  by  means  of  false  and  fraudulent  representa- 
tions."' 

§  127.     Notice  to  Creditor  of  Principal  Debtor's  Dishonesty. — 

In  many  cases  a  bond  is  given  for  the  fidelity  of  the  employee, 
who  becomes  dishonest,  which  is  known  to  the  employer ;  in  such 
case  it  is  the  employer's  duty  to  inform  the  surety.  If  the  em- 
ployer continues  the  dishonest  employee  in  his  service  without 
giving  notice  to  the  surety,  then  the  surety  is  not  liable  for  any 
loss  arising  from  the  dishonesty  of  the  employee  during  his  sub- 
sequent service.  But  this  rule  has  no  application  to  cases  of  mere 
breach  of  duty  or  contract  obligations  on  the  part  of  the  employee, 
not  involving  dishonesty  on  his  part,  or  fraud  or  concealment  on 
the  part  of  the  employer.^^  The  mere  fact  that  the  creditor  had 
knowledge  that  the  employee,  who  was  a  collection  agent,  failed 
to  remit  the  money  collected,  does  not  impose  upon  the  obligee 
the  duty  to  notify  the  surety.^^  It  is  a  breach  of  good  faith  for  the 
employer  or  obligee  to  continue  the  servant  in  a  place  of  trust 
after  discovering  his  dishonesty  or  defalcation,  which  is  presump- 
tively and  in  fact  unknown  to  the  surety,  and  without  notifying 
the  surety  of  the  fact,  giving  him  an  opportunity  to  elect  as  to 
whether  he  will  continue  the  risk.^* 

20.  Deering  &  Co.  v.  Veal,  25  Ky.  New  York. — Home  v.  Farrington, 
Law  Rep.  1809,  78  S.  W.  886.  82  N.  Y.  121. 

21.  Gaddy  v.  Witt  (Tex.  Civ.  App.  Virginia. — Richmond  v.  Kasey,  30 
1911),  142  S.  W.  926.  Gratt.  218. 

22.  Alabama. — Saint  v.  "Wheeler  &  23.  Cumberland  Building  &  Lean 
Wilson  Mfg.  Co.,  95  Ala.  362,  10  So.  Ass'n  v.  Gibbs,  119  Mich.  318,  78  N. 
539.  W.   138;    Aetna   Ins.   Co.   v.   Fowler, 

Georpria.— Charlotte  v.  Gow,  .59  Ga.  108  Mich.  557,  66  N.  W.  470;  Atlantic, 

685.  etc.,  Tel.  Co.  v.  Barnes,  64  N.  Y.  385. 

Massaclinsetts.  —  Watertown     F.       24.  Connecticut   Mut.    Ins.    Co.    v. 

Ins.  Co.  V.  Simmons-,  131  Mass.  85.  Scott,  81  Ky.  540;  Phillips  v.  Foxall, 

Minnesota. — Lancashire  Ins.  Co.  v.  L.  R.  7  Q.  D.  666. 
Callahan,  68  Minn.  277,  71  N.  W.  261. 


155l  Discharge  of  Surety.  §§  128,  129 

§  128.  Negligence  of  Creditor  in  Not  Availing  Himself  of  the 
Debtor's  Means. — It  is  settled  law  that  when  a  creditor  has 
means  of  satisfying  the  deht,  either  actually  or  potentially,  in  his 
■control  or  within  his  possession  as  security,  and  he  does  not  choose 
to  retain  it  and  relinquishes  it,  the  surety  is  discharged.^^  But 
while  a  payee  of  a  note  j.s  bound  to  use  reasonable  diligence  in  col- 
lecting collateral  securities  it  does  not  follow  that  he  owes  a  duty 
to  the  surety  to  immediately  sell  collateral  property  on  maturity 
of  the  note.^^  And  so  in  some  States,  where  the  estates  of  a  de- 
ceased person  is  sufficient  to  pay  all  claims,  the  failure  of  a  holder 
of  the  decedent's  note  to  file  the  same  as  a  claim  against  the  estate, 
will  operate  to  release  the  surety  thereon."  But  this  does  not  ap- 
pear to  be  the  general  rule.^^ 

§  129.  Surety  Signing  Upon  Condition. — A  surety  may  sign 
upon  the  understanding  that  certain  conditions  shall  be  performed 
before  he  shall  become  liable ;  and  if  the  creditor  knows  of  these 

25.  Illinois. — See  Pfirshing  v.  Pet-  corded  and  obtains  priority  releases 

erson,  98  111.  App.  70.  surety.    Hendryx  v.  Evans,  120  Iowa 

Iowa.— Hendry  v.  Evans,  120  Iowa  310,  94  N.  W.  853. 

310,  94  N.  W.  853.  Directing   sheriff   not   to   proceed 

Kentucky. — Mt.  Sterling  Imp.  Co.  with    levy    releases.      Mt.    Sterling 

V.  Cockrell,  24  Ky.  Law  Rep.  1151,  70  Imp.    Co.    v.    Cockrell,    24    Ky.    Law 

S.  W.  842.  Rep.  1151,  70  S.  W.  842. 

Nebraska. — Pierce   v.   Atwood,   64  Failnre  to  file  mortgage  releases. 

Neb.  92,  89  N.  W.  669.  Bennett  v.  Taylor,  43  Tex.  Civ.  App. 

Pennsylvania.  —  Hutchinson      v.  30,  93  S.  W.  704. 

Woodwell,  107  Pa.  St.  509;  Reed  v.  Fraudulent    conduct    on    part    of 

Garvin,  12  Serg.  &  R.  100.  creditor  in  respect  to  property  of  a 

Texas. — Bennett  v.  Taylor,  43  Tex.  principal  who  is  insolvent  releases. 

Civ.  App.  30,  93  S.  W.  704.   See  Bruce  First  National  Bank  v.  Wilbern,  65 

V.  Laing   (Civ.  App.  1901),  64  S.  W.  Neb.   242.  90   N.  W.   1126,   93   N.  W. 

1019.  1002,  95  N.  W.  12. 

West    Virginia.  —  First    National  Failure  to  file  execution  held  not 

Bank  v.  Kittle,  (W.  Va.  1911),  71  S.  to    release.      Williams    v.    Kennedy 

E.   109.  134  Ga.  339,  67  S.  E.  821. 

Wisconsin. — Pauly    Jail     Building  26.  Timmons  v.  Butler,  Stevens  & 

&  Mfg.  Co.  V.  Collins,  138  Wis.  494,  Co.  (Ga.  S.  C.  1912),  74  S.  E.  784. 

120  N.  W.  225.  27.  Waughop   v.    Bartlett,    165    111. 

See  §  130  as  to  surrendering  s«-  124,  46  N.  E.  197. 

curity.  28.  Jackson    v.    Benson,    54    Iowa 

Negligent  delay  in  obtaining  sher-  654,  7  N.  W.  97;  Moore  v.  Gray,  26 

iff's  deed  so  that  a  mortgage  is  re-  Ohio  St.  525. 


I  129  Suretyship  and  Guaranty.  156 

conditions,  and  they  are  not  fulfilled,  the  surety  is  discliarged.^^ 
And  so  a  guarantor  signing  a  guaranty  of  the  payment  of  a  draft 
or  bill,  has  the  right  to  impose  as  a  condition  to  its  acceptance,  or 
binding  force  on  him,  that  a  certain  other  person  named  shall  be- 
come his  co-guarantor,  and  the  acceptance  by  the  obligee  with 
notice  of  the  condition  will  create  no  liability  on  such  guaranty  if 
the  condition  is  not  performed.^"  Because  in  such  cases  of  guar- 
anty or  suretyship,  the  surety  can  sign  upon  condition,  and  if  such 
condition  is  known  to  the  obligee,  he  takes  the  instrument  and  is 
a  party  to  the  contract,  and  a  contract  exists  between  him  and  the 
surety  that  it  shall  be  fulfilled  before  he  becomes  liable;  if  not 
fulfilled  the  surety  is  discharged.^^  And  where  a  surety,  though 
a  company  for  compensation,  specifies  in  the  contract  the  condi- 
tions upon  which  it  will  be  liable  and  makes  them  conditions  pre- 
cedent to  the  obligee's  right  of  recovery,  such  conditions  when  not 
fraudulent  or  unconscionable  are  upheld  by  the  courts  and  must  be 
alleged  and  proven  before  the  obligee  can  recover.^^  But  in  the 
absence  of  notice  or  knowledge  on  the  part  of  the  payee  of  a  note, 
no  agreement  among  the  sureties  that  if  all  are  not  bound  none 
are  to  be,  will  affect  the  right  of  the  payee.^^ 

29.  Georgia, — Jones    v.    Keer,    30  was  necessary  to  make  the  required 

Ga.  93.  number    of    signers,     but    that    he 

Illinois. — Cunningham    v.    Wreen,  would   not   be   liable,   but   that   the 

23  111.  64.  maker  was  to  pay  the  note  does  not 

Missouri. — Linn  County  v.  Farris,  make  him  not  liable  as  surety.   Rowe 

52  Mo.  75.  V.  Bowman,  183  Mass.  488,  67  N.  E. 

Ohio.— Clay  v.  Edgerton,  19  Ohio  636. 

St.  549.  30.  Belleville  Sav.  Bank  v.  Born- 

Pennsylrania.— Caldwell    v.    Heit-  man,  124  111.  200,  16  N.  E.  210. 

shu,  9  Watts  &  S.  51.  31.  Rhode  v.  McLean,  101  111.  467; 

South  Dakota.— State  v.  Welbes,  12  Hull  v.  Parker,  37  Mich.  590;  Benton 

S.  D.  339,  81  N.  W.  629.  v.   Martin,   52   N.  Y.   570;    Lovell   v. 

Texas. — Milliken    v.    Callahan,    69  Adams,  5  Humph.  133;  Gibbs  v.  John- 

Tex.  205,  6  S.  W.  681.  son,    63    Mich.    671,    30    N.    W.    343; 

See  further  in  this  connection  §§  Miller  v.  Stem,  12  Pa.  St.  383. 

50,  51,  herein.  32.  National  Surety  Co.  v.  Schnei- 

A  i)arol  agreement  of  the  principal  dermann   (Ind.  App.  1911),  96  N.  E. 

will  not  release  a  surety  on  contract  955;  Knight  &  Jillson  Co.  v.  Castle, 

required  to  be  in  writing.     Willis  v.  172  Ind.  97,  87  N.  E.  976,  27  L.  R.  A. 

Fields,  132  Ga.  242,  63  S.  E.  828.  (N.  S.)  573. 

A  statement  of  a  surety  that  he  33.  Hess   v.   Schaffner    (Tex.   Civ. 

would  sign   a  note  if  his  signature  App.  1911),  139  S.  W.  1024. 


15  7i  Discharge  of  Surety.  §  130 

Where  a  surety  on  a  note  refuses  to  consent  to  a  further  exten- 
sion or  renewal  of  the  note  unless  one  who  had  signed  it  as  co- 
surety with  him  will  change  his  relation  to  that  of  co-maker, 
which  he  does,  he  will  not  be  permitted  to  deny,  his  so  signing 
having  induced  the  extension,  his  liability  on  the  note.^* 

§  130.  Surrendering  Security. — The  right  of  a  surety  does  not 
depend  upon  the  contract,  but  upon  the  equities  arising  out  of  the 
circumstances  of  the  case,  and  the  creditor  is  affected  by  knowledge 
of  the  true  relation  of  the  debtors  acquired  at  any  time  before  he 
does  the  act  which  alters  the  position  of  the  surety ;  and  one  who 
makes  a  promissory  note  for  the  accommodation  of  another  is  a 
surety  within  this  rule.^*  Hence,  if  the  creditor  has  taken  a  lien 
on  property  for  the  debt,  or  has  taken  the  property  of  the  prin- 
cipal for  the  benefit  of  himself  and  surety,  and  then  releases  the 
lien  or  gives  up  the  property  without  the  consent  of  the  surety, 
the  surety  is  discharged  to  the  extent  of  such  lien  or  property.^® 

The  wrongful  surrender  by  the  obligee  in  the  bond  of  security 
for  the  performance  of  the  guarantied  obligation,  without  the 
knowledge  of  the  surety,  discharges  him  from  liability  therefor 
entirely  or  pro  tanto,  according  to  the  value  of  the  security  thus 
surrendered."  So  the  surety  is  entitled  to  collateral  security  re- 
ceived by  the  creditor  from  the  principal  debtor,  and  if  the  credi- 

34.  Donald  v.  First  National  Bank  63  N.  E.  427;  Baker  v.  Briggs,  8  Pick, 
of    Commerce    (Miss.    1911),    54    So.    122. 

721,  holding  that  the  cancellation  of  Minnesota,  —  Gotzian     &    Co.    v. 
the  old  note  by  the  renewal  and  the  Heine,  87  Minn.  429,  92  N.  W.  398. 
extension  effected  by  the  new  note  Missouri. — Lakenan  v.  North  Mis- 
was  a  sufficient  consideration.  souri  Trust  Co.,  147  Mo.  App.  48,  126 

35.  Bradford  v.  Hubbard,   8   Pick.  S.  W.  547. 

(Mass.)  155.  PennsjiTania.  —  Neff's  Appeal,  9 

36.  United     States.  —  American   Watts  &  S.  36. 

Bonding  Co.  v.  Pueblo  Inv.  Co.,  150  Tennessee. — Hoss  v.  Crouch  (Tenn. 

Fed.  17,  80  C.  C.  A.  97.  Ch.  App.  1898),  48  S.  W.  724. 

Illinois. — Kirkpatrick  v.  Howk,  80  Texas. — Irion    v.    Yell    (Civ.    App. 

111.  122;   Rogers  v.  Turstees,  46  111.  1910),  132  S.  W.  69. 

428  .  See  §  128  as  to  negligence  <-f  cred- 

lowa. — Bank    of    Monroe    v,    Grif-  itor     in     not     availing     himself     of 

ford,  79  Iowa  300,  44  N.  W.  558.  debtor's  means. 

Massachusetts. — See  Boston  Penny  37.  American    Bonding   Co.    v.  Pu- 

Sav.  Bank  v.  Bradford,  181  Mass.  199,  eblo  Inv.  Co.,  150  Fed.  17,  80  C.  C.  A. 

97. 


I    131  SUKETYSHIP    AND    GUARANTY.  158 

tor,  knowing  the  relations  between  the  debtors,  surrenders  part 
of  such  property  or  security  without  the  consent  of  the  surety, 
the  surety  is  discharged  to  that  extent,  although  the  relation  of 
debtor  and  creditor  does  not  appear  on  the  face  of  the  debt,"^**  be- 
cause the  surety  is  entitled  to  be  subrogated  to  all  the  rights  and- 
securities  of  the  creditor.^^  And  an  unauthorized  payment  to  the 
principal  of  the  proceeds  of  a  sale  of  property  mortgaged  to  secure 
the  debt  will  discharge  the  surety/"  And  if  in  releasing  the  col- 
lateral or  a  lien  a  material  alteration  is  made  in  the  contract,  the 
surety  is  absolutely  released.''^  '  But  the  surety  is  not  discharged 
by  the  act  of  the  creditor  in  releasing  the  security,  to  which  the 
principal  debtor  had  no  title,''^  or  where  at  the  time  he  signed  to 
an  instrument  as  surety  he  had  knowledge  of  the  release  of  col- 
lateral held  by  the  principal  as  security." 

§  131.     Taking  Property  by  Attachment  and  Execution. — The 

creditor  can  acquire  possession  of  property  by  attachment  or  by 
levy  of  execution,  and  when  he  has  thus  acquired  possession,  he 
should  not  afterwards  in  any  manner  relinquish  the  same  or  con- 
sent to  a  course  of  proceedings  that  will  have  that  effect ;  and  if 
he  does  so  the  surety  will  be  discharged  to  the  extent  correspond- 
ing with  the  value  of  the  property  released."  But  when  the  exe- 
cution creates  no  lien  upon  the  property,  if  no  levy  is  made,  the 
delay  of  the  creditor  to  have  it  levied  will  not  release  the  surety.** 

38.  Guild  V.  Butler  127  Mass.  386.  323;    Sherraden   v.   Parker,  24   Iowa 

39.  Cummings  v.  Little,  45  Me.  28;  Mt.  Sterling  Imp.  Co.  v.  Cockrell, 
183;  Saline  Co.  v.  Brice,  65  Mo.  63;  24  Ky.  Law  Rep.  1151,  70  S.  W.  842; 
Bangs  V.  Strong,  4  N.  Y.  315;  Hodg-  Templeton  v.  Shakley,  107  Pa.  St. 
son  V.  Shaw,  3  Mylne  &  K.  183.  370. 

40.  Lakenan  v.  North.  Missouri  45.  Georgia. — Crawford  v.  Gaul- 
Trust  Co.,  147  Mo.  App.  48,  126  S.  W.  den,    33    Ga.    173. 

547.  Indiana.  —  Jerauld  v.   Trippet,   62 

41.  Polak   V.   Everett,    1    Q.   B.   D.    Ind.  122. 

6G9;  Watts  v.  Shuttleworth,  7  Hurl.  Lousiana. — Manice  v.    Duncan,    l2 

&  N.  353.  La.  Ann.  715. 

42.  First  Nat.  Bank  of  Cumberland  New  Hampshire. — Morrison  v.  Citi- 
V.  Parsons,  45  W.  Va.  688,  32  S.  E.  zens'  National  Bank,  65  N.  H.  253,  20 
271.  Atl.  300. 

43.  Sapiro  v.  Sisley,  125  N.  Y.  Texas. — Brown  v.  Chambers,  63 
Frpp.  467.  Tex.  131;    Hunter  v.  Clark,  28  Tex.. 

44.  Maquoketa  v.  Willey,  35  Iowa  163. 


159  DiSCHAKGE    OF    SuRETY.  §    132 

"But  if  the  execution,  as  soon  as  issued,,  becomes  a  lien  upon  the 
property,  then  the  surety  is  released,  if  the  creditor  abandons  the 
proceedings,  to  the  amount  which  could  be  realized  by  the  iavy 
and  sale  of  the  property/*^ 

Where  the  statute  does  not  intervene,  the  liability  of  the  surety 
is  not  changed  by  the  insolvency  and  discharge  of  the  principal  in 
the  bond."  So  when  the  attachment  has  gone  to  judgment,  and 
then  the  principal  is  discharged  in  bankruptcy  or  insolvency,  the 
surety  is  still  liable*^  because  the  bond  is  not  affected  by  con- 
tingencies which  might  have  destroyed  the  attachment  if  no  bond 
had  been  given.^^  But  an  execution  levied  upon  property,  the 
sale  of  which  would  bring  no  returns,  may  be  abandoned  without 
discharging  the  surety."" 

§  132.  Failure  to  Apply  Securities. — The  delay  in  applying- 
securities,  or  not  applying  them  at  all,  may  discharge  the  surety. 
So  when  the  creditor  recovers  a  judgment  against  the  debtor  and 
surety,  and  execution  is  levied  upon  the  principal's  property,  and 
then  the  creditor  releases  such  property,  or  his  lien  is  negligently 
lost,  the  surety  is  discharged  to  extent  of  the  value  of  such  prop- 
erty ;^^  loss  of  securities  by  the  negligent  act  of  the  creditor  releases 
the  surety  to  the  extent  of  such  loss.^^  It  is  the  duty  of  a  creditor 
to  deligently  guard  and  protect  effects  in  his  hands  for  the  security 
of  his  debt.^'''  So  where  a  creditor  receives  notes,  mortgages,  or 
property,  in  pledge  for  a  debt,  such  securities  must  be  regarded  as 
an  indemnity  to  the  creditor,  and  to  the  person  who  may  have  be- 
come bound  as  surety  for  the  original  debt,  and  the  surety  has  the 

46.  Robeson  v.  Roberts,  20  Ind.  155.  See  §§  213  et  seq. 

47.  Gass  V.  Smith,  6  Gray  (Mass.)  51.  Hendryx  v.  Evans,  120  Iowa 
112.  310,  94  N.  W.  853;  Mt.  Sterling  Imp. 

48.  Rosenthal  v.  Perkins,  123  Cal.  Co.  v.  Cockrell,  24  Ky.  Law  Rep. 
240,  55  Pac.  804;  Bernheimer  v.  1151,  70  S.  W.  842;  Hubbell  v.  Car- 
Charak,  170  Mass.  179,  49  N.  E.  81;  penter,  5  Barb.  (N.  Y.)  520;  Day  v. 
McCombs  v.  Allen,  82  N.  Y.  114;  Ramey,  40  Ohio  St.  446;  Dixon  v. 
Easton  v.  Ormsby,  18  R.  I.  309,  27  Ewing,  3  Ohio  280. 

Atl.  216.  52.  Barrett  v.  Bass,  105  Ga.  421,  31 

49.  Bernheimer     v.     Charak,     170    S.  E.  435. 

Mass.  179,  49  N.  E.  81.  53,  Ellis  v.  Conrad-Seipp  Brewing 

50.  Moss  V.  Pittinger,  3  Minn.  217;  Co.,  207  111.  291,  69  N.  E.  808,  afflrm- 
Moss    V.    Craft,    10    Mo.    720;    Com-    ing  107  111.  App.  139. 

mercial  Bank  v.  Bank,  11  Ohio  444. 


I   133i  Suretyship  and  Guarajjty.  160 

right  to  exact  of  the  creditor  proper  care  and  diligence  in  the  man- 
agement and  collection  of  the  collaterals,  and  any  waste  or  misap- 
plication of  the  collateral  security  will  operate  as  a  release  of  the 
surety  to  the  amount  of  the  loss  actually  sustained.^* 

§  133.  Release  of  Co-surety. — Co-sureties  are  liable  to  con- 
tribution among  themselves,  and  so  a  discharge  of  one  of  them 
from  his  obligation,  if  the  others  are  not  discharged,  will  not  re- 
lease him  from  the  liability  to  contribute  for  their  indemnity.^ 
Where  the  release  of  one  of  several  co-obligors  shows  upon  its  face, 
in  connection  with  the  surrounding  circumstances,  that  it  was  the 
intention  of  the  parties  not  to  release  his  co-ofcligors,  such  inten- 
tion will  be  carried  out.^^  So  in  relation  to  sureties ;  and  a  receipt 
by  the  creditor  to  a  surety  of  one-half  of  the  amount  due  on  a  joint 
and  several  bond,  does  not  release  the  other  surety,  but  he  is  liable 
for  only  one-half  of  the  original  debt."  That  is,  when  the  obliga- 
tion of  the  sureties  is  joint  and  several,  the  discharge  of  one  of  them 
does  not  release  the  others  from  payment  of  their  proper  propor- 
tion of  the  debt.^^  Thus,  where  one  of  two  sureties  is  released  from 
liability,  it  relieves  the  other  surety  from  liability  for  one-half  of 
the  debt,  that  being  the  proportion  which  the  surety  who  is  re- 
leased would  have  to  pay  as  between  himself  and  his  co-surety,  had 
he  not  been  released.^®  But  when  the  debt  is  joint,  the  release  of 
one  joint  debtor  discharges  the  others,  and  extrinsic  evidence  will 
not  be  admitted  to  explain  the  contract  as  a  covenant  not  to  sue.®" 

54.  Phares  v.  Barbour,  49  111.  379;        57.  Schock    v.    Miller,    10    Pa.    St. 
Hall  V.  Hoxsey,  84  111.  616;   Crim  v.    401. 

Fleming,  101  Ind.  154;  Bank  of  Mon-  58.  Glasscock  v.  Hamilton,  62  Tex. 

roe  V.  Gifford,  79  Iowa  300,  44  N.  W.  143. 

558;    Black  River  Bank  v.  Page,  44  59.  Louisiana.  —  Gosserand  v.  La- 

N.  Y.  453.  Coiir,  8  La.  Ann.  75. 

55.  Clapp  V.  Rice,  15  Gray  (Mass.)  Ohio.— Walch  v.  Miller,  51  Ohio  St. 
5.57.  462,  38  N.  E.  381;    Ide  v.  Churchill, 

See  §  120  as  to  giving  time  to  one  14  Ohio  St.  372. 

or  more  sureties.  Pennsylvania.  —  Klingensmith    v. 

Dismissal  of  suit  against  heirs  of  Klingensmith,  31  Pa.  St.  460. 

one   surety   does   not   discharge   the  Virginia. — Waggoner    v.    Dyer,    11 

others.     Carlton  v.  Krueger,  54  Tex.  Leigh  384. 

Civ.  App.  48,  115  S.  W.  619,  1178.  Wisconsin.— Hallock     v.     Yankey, 

Examine  Wilkinson  v.  Conley,  133  102  Wis.  41,  78  N.  W.  156. 

Ga.  518,  66  S.  E.  372.  See  Hunter  v.  First  National  Bank, 

56.  Parmaler  v.  Lawrence,  44  111.  172  Ind.  62,  87  N.  E.  734. 

405;  Moore  v.  Stan  wood,  98  111.  605.        60.  Clark  v.  Mallory,  185  111.  227, 

56  N.  E.  1099. 


161 


DiSCHAKGE    OF    SuKETY. 


§     164: 


§  134.  Failure  of  Creditor  to  Sue  Principal. — Mere  forbear- 
ance or  indulgence  bj  a  creditor  to  sue  a  principal  will  not  release 
the  surety.  Because  the  surety  is  not  put  to  any  hazard  by  for- 
bearance of  the  creditor,  as  he  has  it  in  his  power  to  protect  him- 
self. He  may  either  pay  the  debt,  and  thus  become  subrogated  to 
the  rights  of  the  securities  of  the  creditor,  or  he  may  compel  the 
creditor  to  sue.  Mere  delay  in  enforcing  the  debt  against  the  prin- 
cipal without  fraudulent  connivance  between  the  maker  and  payee, 
does  not  release  the  surety ;  otherwise  if  there  is  an  agreement  on 
a  new  consideration  for  an  extension.^^  And  the  surety  is  not  dis- 
charged by  the  creditor's  act  in  agreeing  to  continue  the  suit 
against  the  principal  where  the  surety  is  not  actually  prejudiced 
thereby.  ^^ 

But  generally  if  by  some  valid  enforceable  agreement  between  a 


61.  Grier  v.  Flitcroft,  57  N.  J.  Eq. 
556,  41  Atl.  425. 

Where  delay  does  not  release: 

California. — Sather  Banking  Co.  v. 
Briggs  Co.,  138  Cal.  724,  72  Pac.  352; 
Bull  V.  Coe,  77  Cal.  54,  18  Pac.  808. 

Illinois.— Field  v.  Brokaw,  148  111. 
€54,  37  N.  E.  80;  Villars  v.  Polner, 
67  111.  204. 

Maryland. — Bank  v.  State,  62  Md. 
88. 

Minnesota. — Board  of  Com'rs  of 
St.  Louis  County  v.  Security  Bank  of 
Duluth,  75  Minn.  174,  77  N.  W.  815. 

Nebraska. — Bell  v.  Walker,  54  Neb. 
222,  74  N.  W.  617;  Eickhoff  v.  Eicken- 
bary,  52  Neb.  332,  72  N.  W.  308. 

New  York. — Burfeind  v.  People's 
Surety  Co.,  139  App.  Div.  762,  124  N. 
Y.  Supp.  385. 

North  Dakota. — Yerxa  v.  Ruthruff, 
19  N.  D.  13,  120  N.  W.  758. 

South  Carolina. — Fretwell  v.  Car- 
ter, 83  S.  C.  553,  65  S.  E.  829. 

Tennessee. — Marshall  v.  Hudson, 
9  Yerg.  58. 

The  surety  could  not,  at  common 
law,  be  discharged  by  failure  of  the 
payee  to  sue,  and  the  plea  setting  up 
such  defense  was  necessarily  with- 
out merit.  Baumgartner  v.  McKin- 
11 


non  (Ga.  App.  1912),  73  S.  E.  519, 
citing  ThomaS'  v.  Clarkson,  125  Ga. 
78,  54  S.  E.  77,  6  L.  R.  A.  (N.  S.  )C5S. 

Delay  short  of  the  statutory  period 
of  limitation  in  enforcing  the  bond 
against  the  principal  will  not  re- 
lease the  sureties.  Clinton  County 
V.  Smith  (Mo.  S.  C.  1911),  141  S.  W. 
1091. 

Compare  People  v.  Whittemore, 
253  111.  378,  97  N.  E.  683,  as  to  statute 
of  limitations  not  running  against 
surety. 

A  payment  by  the  principal  stops 
the  statute  of  limitations  as  to  the 
surety,  not  for  the  reason  that  one 
is  principal  and  the  other  is  surety, 
but  because  both  are  usually  joint 
promisors;  that  is,  the  surety  is  af- 
fected by  the  act  of  his  principal  in 
his  capacity  as  a  joint  promisor. 
Clinton  County  v.  Smith  (Mo.  S.  C. 
1911),  141  S.  W.  1091. 

Failure  of  creditor  to  sue  within 
time  stipulated  in  contract  held  not 
to  release  surety.  Marshalltown 
Stone  Co.  v.  Louis  Drach  Const.  Co., 
123  Fed.  746  (IT.  S.  C.  C.)  ;  Bart- 
lett  V.  Illinois  Surety  Co.,  142  Iowa 
538,  119  N.  W.  729. 

62.  Eichkoff  v.  Eichenbary,  52  Neb, 


§  139         Suretyship  and  Guaranty,  162 

creditor  and  the  principal  the  former  is  disabled  from  bringing  a 
suit  against  the  latter,  a  surety  cannot  be  held  liable.*"^ 

An  indorser  of  a  note  is  held  to  be  a  surety  within  a  statute  per- 
mitting a  surety  to  give  notice  to  the  creditor  or  obligee  and  pro- 
viding that  in  case  of  a  failure  of  the  latter  to  bring  suit  the  surety 
shall  be  released.''* 

§  135.  Disaffirmance  of  Contract  by  Principal. — Principals  un- 
der disability  may  disaffirm  their  contract  when  the  disability  is 
removed.  The  general  rule  is  that  where  a  party  becomes  surety 
for  an  infant  or  other  party  under  disability,  he  is  bound,  though 
his  principal  is  not.^^  But  to  this  rule  there  are  exceptions.  Thus, 
when  the  principal  has  the  right  to  disaffirm  the  contract,  and  re- 
turns the  consideration  received  under  it,  the  surety  is  thereby  dis- 
charged.*® And  so  a  surety  upon  a  promissory  note  of  a  minor  is 
not  liable  thereon,  where  the  minor,  upon  attaining  his  majority, 
disaffirms  the  contract  and  returns  the  property  for  the  purchase 
price  for  which  the  note  was  given." 

§  136.  Fraud  Upon  the  Principal. — The  right  of  the  surety 
to  plead  that  the  contract  of  his  principal  was  procured  by  fraud 
is  a  question  upon  which  the  courts  are  divided.  Many  courts  hold 
that  the  plea  is  personal  to  the  principal,  while  others  sustain  the 
right  of  the  surety  to  maintain  such  defense.  'So  in  some  States 
sureties  cannot  plead  duress  or  fraud  upon  their  principal  in  dis- 
charge of  their  liability.''^  On  the  other  hand,  it  is  held  that  the 
defense  that  a  contract  was  fraudulent  as  to  the  principal  may  be 
pleaded  by  the  surety.** 

332,  72  N.  W.  308;  First  Nat.  Bank  of  Baker  v.  Kennett,  54  Mo.  82;  Patter- 
Cumberland  V.   Parsons,   45   W.   Va.  son  v.  Cone,  61  Mo.  439. 
688,  32  S.  E.  271.  67.  Keokuk  County  State  Bank  v. 

63.  Bauschard    Co.    v.    Fidelity    &  Hall,   106   Iowa  540,   76   N.   W.   832; 

Casualty   Co.   of   New   York,   21   Pa.  Baker  v.  Kennee,  54  Mo.  82. 

Super.  Ct.  370.  68.  Plummer  v.  People,  16  111.  358; 

G4.  Williams  v.  Ogg  &  Keith  Lum-  Peacock  v.  People,  83  111.  331 ;  Rob- 
ber Co.,  42  Tex.  Civ.  App.  558,  94  S.  inson  v.  Gould,  11  Cash.  (Mas3.)  55  r 
W.  420.  Thompson    v.    Lockwood,    15    Johns. 

6*>.  Jones  v.  Crossthwait,  17  Iowa  (N.  Y.)  259. 

393;  Allen  v.  Berryhill,  27  Iowa  534.  As  to  duress,  see  §  32  herein. 

66.  Keokuk  County  State  Bank  v.  69.  Fisher    v.    Shattuck,    17    Pick. 

Hall,   106   Iowa  540,   76   N.  W.   832;  (Mass.)   252;   Osborn  v.  Bobbins,  36: 


163  Discharge  of  Surety.  §§  137-138 

§  137.     Substitution  of  Securities. — A  surety  is  not  released 

by  the  substitution  by  the  creditor  of  one  collateral  security  for  an- 
other, when  made  in  good  faith,  apparently  for  the  benefit  of  all 
ooncernedJ^  Thus,  the  release  of  part  of  certain  real  estate  in  or- 
der to  make  a  title  to  one  who  purchases  it  for  full  value,  upon 
condition  that  the  purchase  money  should  be  applied  to  the  ex- 
tinguishment of  a  mortgage  that  was  a  prior  lien  upon  the  whole 
estate,  does  not  release  the  surety  because  the  transaction  bettered 
his  condition,''^  So  the  surrender  of  a  life  policy  held  as  collateral, 
upon  receipt  of  its  present  value,  after  the  principal  had  become 
bankrupt,  and  it  is  doubtful  whether  he  could  keep  up  the  policy, 
does  not  discharge  the  surety.^^  So  where  a  creditor  releases  a  levy 
on  property  of  the  principal  debtor,  worth  $90,  in  consideration 
of  an  order  worth  $100,  that  could  not  have  been  reached  by  exe- 
cution, it  does  not  discharge  the  surety,  because  he  is  benefited 
by  the  transaction.^^  And  so  the  diversion  of  securities  which  re- 
sults in  no  injury  to  the  surety  does  not  affect  his  liability  for  pay- 
ment of  the  debt,  if  the  accompanying  right  of  subrogation  would 
be  of  no  value.^* 

§  138.  Payment  of  Consideration  in  Installments — Building 
Contracts. — Where  a  building  contract  is  paid  in  installments, 
the  installments  must  be  made  as  stipulated,  and  not  in  advance. 
Thus,  a  surety  on  a  building  contract,  where  the  principal  is  to  be 
paid  in  installments,  will  be  discharged  if  the  principal  is  paid 
faster  than  the  contract  provides.^^  So  by  paying  a  party  an  in- 
stallment before  it  is  due  under  the  contract,  the  ow.ner  of  the 
building  discharges  the  surety  of  the  contractor  from  his  obliga- 
tions.'® Such  payment  is  prejudicial  to  the  surety,  because  it  di- 
minishes the  security  which  the  owner  had  and  which  he  should 

N.    Y.    365;    Strong   v.   Grannis,    26  74.  Blydenburgh    v.    Bingham,    38 

Barb.    (N.    Y.)    122;    Griffith    v.    Sit-  N.  Y.  371. 

greaves,  90  Pa.  St.  161.  75.  General  Steam  Nav.  Co.  v.  Rolt, 

70.  State  Bank  of  Lock  Haven  v.  6  C.  B.  (N.  S.)  550;  Calvert  v.  Dock 
Smith,  155  N.  Y.  185,  49  N-.  E.  680.  Co.,  2  Keen  638. 

71.  Neff's  Appeal,  9  Watts  &  S.  As  to  building  contracts,  see,  also, 
(Pa.)  36.  §§  112  et  seq.  herein. 

72.  Coates  v.  Coates,  33  Beavan  76.  Welch  v.  Hubchmitt  Building 
249.  &  Woodworking  Co.,  61  N.  J.  L.  57, 

73.  Thomas  v.   Cleveland,  33   Mo.  38  Atl.  824. 
126. 


§  139  Suretyship  and  Guaeanty.  164 

have  availed  himself  of  to  the  benefit  of  the  surety,  and  heuce, 
the  surety  is  damaged  to  the  amount  of  the  payment  in  advance, 
and  therefore  discharged."  So  in  building  contracts,  if  the  con- 
tractor is  paid  in  advance  instead  of  by  installments  as  the  work 
progresses  the  sureties  are  thereby  discharged.^^  But  it  is  held 
if  the  sureties  can  receive  no  injury  from  an  advanced  payment 
they  are  not  discharged ;  as  where  the  owner  of  the  new  build- 
ing loans  the  contractor  money  and  takes  his  due  bill,  and  pays 
money  to  him  for  materials  as  soon  as  delivered,  and  then  makes 
a  settlement  at  the  time  of  the  first  payment  and  takes  back  the 
due  billJ^ 

'And  a  delay  in  paying  an  installment  due  on  such  a  contract 
has  been  held  not  to  discharge  the  surety,  such  delay  not  being  in 
pursuance  of  any  agreement.^'^ 

§  139.  Tender  of  Payment. — When  the  principal  at  maturity 
of  the  debt,  tenders  the  amount  due  to  the  creditor,  who  refuses 
it,  this  discharges  the  surety,^^  and  such  tender  need  not  be  kept 
good  nor  paid  into  court.^^  And  so  if  the  surety  tenders  payment 
and  the  creditor  refuses  it,  he  is  discharged  and  need  not  keep 
the  tender  good.*^ 

77.  Village  of  Chester  v.  Leonard,  79.  Hand  Mfg.  Oo.  v.  Marks,  36 
«8  Oonn.  495,  37  Atl.  397.  Ore.  523,  52  Pac.  512,  59  Pac.  549. 

78.  United  States. — Board  v.  Bran-  See,  also,  Cochran  v.  Baker,  34 
ian,  57  Fed.  179.  Ore.  551,  52  Pac.  520,  56  Pac.  641. 

California. — Bragg  v.  Shaw,  49  Cal.  80.  Bagnell    v.    American    Surety 

131.  Co.,  102  Mo.  App.  707,  77  S.  W.  327. 

Minnesota. — Simon&on     v.     Grant,  81.  Lee  v.  Manley,  154  N.  C.  244, 

36  :Minn.  439.  ''^  S.  E.  385;  Smith  v.  Old  Dominion 

Missonri. — Evans    v.    Graden,    12a  Building  &  Loan  Ass'n,  119  N.  C.  257, 

Mo.  72,  28  S.  W.  439.  26  S.  E.  40. 

Nebraska. — Gray  v.  School  Dist.  of  82.  Smith  v.  Old  Dominion  Build- 
Norfolk,  35  Neb.  438,  53  N.  W.  377.  ing  &  Loan  Ass'n,  119  N.  C.  257,  26 
Nevada. — Carson,     etc.,     Ass'n    v.  S.  E.  40;  Mitchell  v.  Roberts,  17  Fed. 
Miller,  16  Nev.  327.  776. 

Texas. — Ryan  v.  IMorton,   65  Tex.  83.  O'Connor  v.  Morse,  112  Cal.  31, 

258.  44  Pac.  305;    Solomon  v.  Reese,  34 

Washington. — Peters     v.     Mackay,  Cal.   36;    Hayes  v.   Josephi,  26   Cal. 

20  Wash.  172,  54  Pac.  1122.  535. 

"Wisconsin.  —  Cowdery    v.    Hahn, 
105  Wis.  455,  81  N.  W.  882. 


16&  Rights  of  Surety  as  to  Ceeditoe. 

CHAPTER  VI. 

Rights  and  Remedies  of  Surety  as  to  Creditoe. 

Section  140.  The  Contract  in  General. 

141.  Diligence  of  Surety. 

142.  Facts  Concealed  —  Not  Connected  with  the  Contract. 

143.  Facts  Developed   Subsequent  to  the  Contract, 

144.  Set-off  and  Recoupment. 
144a.  Notice  of  Default. 

145.  Compelling  Creditor  to  Bring  Suit. 

146.  Effect  of  Notice  by  Surety  to  Creditor  to  Proceed  to  Collect 

Debt. 

147.  Creditor's  Promise  to  Look  to  the  Principal  Only. 

148.  Creditor  Informing  the  Surety  that  the  Debt  is  Paid. 

149.  Surety  May  Compel  Creditor  to  Resort  to  Securities  in  the 

Creditor's  Hands. 

150.  Right   of   Surety   to   Defend   Action    Brought   Against   His 

Principal. 

151.  Subrogation  of  Creditor  to  Surety's  Securities. 

152.  Subrogation  of  Surety  to  Creditor's  Rights. 

153.  What  Securities  the  Surety  is  Entitled  to  Claim. 

154.  When  Surety  Can  Take  Securities. 

155.  Stranger  Paying  Debt. 

156.  When  Surety  Will  Not  Be  Subrogated. 

157.  Surety  Must  First  Pay  the  Debt. 

158.  What  is  Payment. 

159.  Debtor  and  Creditor. 

160.  Fraudulent  Conveyances  of  PrincipaJ. 

161.  As  to  Exemptions  of  Principal.  , 

162.  When   Surety  Owes    Principal. 

163.  Payment  of  a  Specialty  or  Judgment. 

164.  Extent  of  Subrogation. 

165.  Surety  of  a  Surety. 

166.  Co-sureties. 

167.  Joint  Debtors. 

168.  Successive  Sureties  in  Judicial  Proceedings. 

169.  Guarantors. 

170.  Surety's  Defense — In  Courts  of  Equity  or  of  Law. 

171.  Remedies  of  Creditor. 

172.  Death  of  Principal. 

173.  Debt  Barred  Against  the  Principal. 

Sec.  140.  The  Contract  in  General. — One  who  becomes  surety 
for  another  must  ordinarily  be  presumed  to  do  so  upon  the  belief 
that  the  transaction  between  the  principal  parties  is  one  accru- 


§  141  Suretyship  and  Guaranty,  16S 

ing  in  the  usual  course  of  business  of  that  description,  subjecting 
him  only  to  risks  attending  it.  The  principal  debtor  is  presumed 
to  know  that  such  will  be  his  undertaking,  and  that  he  will  act 
upon  it  unless  he  is  informed  that  there  are  some  extraordinary 
circumstances  affecting  the  risk.  To  receive  a  surety  known  to 
be  acting  upon  the  belief  that  there  are  no  unusual  circumstances 
by*  which  his  risk  will  be  materially  increased,  well  knowing  that 
there  are  such  circumstances,  and  having  a  suitable  opportunity 
to  make  them  known  and  withholding  such  information,  is  a  legal 
fraud  by  which  the  surety  will  be  relieved  from  his  contract.^  If 
the  person  giving  the  credit  makes  use  of  any  artifice  to  throw  the 
surety  off  his  guard  and  lull  him  into  a  false  security,  and  he  is 
thereby  deceived  to  his  detriment,  he  will  be  discharged.^ 

If  the  creditor  knows  or  has  good  ground  for  believing  that  the 
surety  is  being  deceived  or  misled,  or  that  he  was  induced  to  enter 
into  the  contract  in  ignorance  of  facts  materially  increasing  his 
risks,  of  which  the  creditor  has  knowledge,  and  he  has  the  oppor- 
tunity before  accepting  the  undertaking  to  inform  him  of  such 
facts,  good  faith  and  fair  dealing  demand  that  he  should  make 
such  disclosure,  and  if  the  creditor  accepts  the  contract  without 
doing  so,  the  surety  may  afterwards  avoid  it.^ 

§  141,  Diligence  of  Surety. — If  the  surety  before  becoming^ 
such  applies  to  the  creditor  for  information  relating  to  the  risk 
about  to  be  assumed,  the  creditor,  if  he  answers  at  all,  must  dis- 
close all  the  facts  which  he  knows  in  that  regard ;  and  he  can  do 

1.  Franklin  Bank  v.  Cooper,  S6  Me.  surety  to  sign  contract;  §  125  as  to 
179;  Soo  V.  State,  39  N.  J.  L.  135.  fraud;  extension  of  time. 

2.  Illinois. — Roper  v.  Sangamon  3.  Illinois. — Booth  v.  Storrs,  75  111. 
Lodge,  91  111.  518.  438. 

Indiana. — Taylor    v.    Lohman,    74  Indiana. — Ham   v.   Greve,   34   Ind. 

Ind.  418.  18. 

Ohio. — Smith  v.  Joslyn,  40  Ohio  St.  Iowa. — Bank  of  Monroe  v.  Ander- 

409.  son  Bros.  Min.  &  Ry.,  65  Iowa  692.  22 

PennsylTania.— Wayne  v.  Bank,  52  N.  W.  929. 

Pa.  St.  250.  Maine.  —  Franklin   Bank   v.    Stev- 

England. — Railton  v.  Matthews,  10  ens,  39  Me.  542. 

CI.  &  F.  934;  Lee  v.  Jones,  17  C.  B.  England.— Hamilton  v.  Watson,  12 

(N.  S.)  482.  CI.  &  F.  109. 

See,  also,  cases  cited  in  next  sec-  See,  also,  cases  cited  in  next  sec- 
tion, tion. 

See   §   126  as  to  fraud  to  induce 


167i  Rights  of  Surety  as  to  CBEDiToa.  §  141 

nothing  to  deceive  or  mislead  the  surety  without  violating  the 
agreement.  Whether  a  creditor  is  bound  to  volunteer  disclosures 
to  one  about  to  become  a  surety,  depends  upon  circumstances  of 
the  case.  If  there  is  nothing  in  the  circumstances  to  indicate 
that  the  surety  is  being  misled  or  deceived,  or  is  ignorant  of  facts 
materially  affecting  the  risk,  the  creditor  is  not  bound  to  seek 
the  surety  and  inform  him  of  the  facts.  But  if  he  knows,  or  has 
good  ground  to  know,  that  the  surety  is  being  deceived,  or  has 
entered  into  the  contract  in  ignorance  of  such  facts,  and  has  an 
opportunity  to  disclose  them  to  the  surety  before  accepting  the 
obligation,  he  must  do  so,  or  the  surety  may  afterwards  avoid  the 
■contract  if  he  has  used  due  diligence.* 

4.  United  States. — Title  Guaranty  PennsylTania. — Court  Vesper  No. 
&  Surety  Co.  v.  Baglin,  178  Fed.  682,  69,  Foresters  of  America,  v.  Fries,  22 
102  C.  C.  A.  182,  affirming  Baglin  v.  Pa.  Super.  Ct.  250. 
Title  Guaranty  &  Surety  Co.  (U.  S.  Texas. — United  States  Fidelity  & 
C  C),  166  Fed.  356;  American  Guaranty  Co.  v.  Means  &  Fulton 
Surety  Co.  v.  Lawrenceville  Cement  Iron  Works  (Tex.  Civ.  App.  1910), 
Co.,  107  Fed.  717.  132  S.  W.  536. 

Iowa. — Barnes  v.  Century  Savings'  Wiscousiu.  —  St.  Paul  Title  & 
Bank,  149  Iowa  367,  128  N.  W.  541;  Trust  Co.  v.  Sabin,  112  Wis.  105,  81 
Bank  of  Monroe  v.  Anderson  Bros.    N.  W.  1109. 

Min.  &  Ry.  Co.,  65  Iowa  692,  700,  22  England.— Pidock  v.  Bishop,  3 
N.  W.  929.  Barn.  &  C.  605;  Stone  v.  Compton,  5 

Kentucky. — Winter,   Jr.,   &  Co.   v.    Bing.  N.  C.  142. 
Forrest,  145  Ky.  G.  A.  581,  140  S.  W.       See,  also,  cases  cited  in  preceding 
1005;     Sebold    v.    Citizens'    Deposit   section. 

Bank,  31  Ky.  Law  Rep.  1244,  105  S.  Whether  a  creditor  is  bound  be- 
W.  130;  Fehr  Brewing  Co.  v.  Mulli-  fore  accepting  the  undertaking  of 
can,  23  Ky.  Law  Rep.  2100,  66  S.  W.  the  surety  and  without  being  applied 
627.  to   by   him   for   information   on    the 

Maine. — Franklin  Bank  v.  Cooper,  subject  to  inform  him  of  facts  with- 
39  Me.  542.  in  his  knowledge  which  increase  the 

Maryland.  —  Wright  v.  German  risks  of  the  undertaking  depends  on 
Brewing  Co.,  103  Md.  377,  63  AtL  the  circumstances  of  the  case.  If 
807.  there  is  nothing  in  the  circumstancegi 

Michigan. — First  National  Bank  v.  to  indicate  that  the  surety  is  being 
Johnson,  133  Mich.  700,  95  N.  W.  975,  misled  or  deceived,  or  that  he  is 
10  Det.  Leg.  N.  403.  entering  into  the  contract  in  ignor- 

New  Mexico. — Putney  v.  Schmidt  ance  of  the  facts  materially  affect- 
(N.  M.  1911),  120  Pac.  720.  ing    its    risks,    the    creditor    is    not 

North  Dakota, — Aetna  Indemnity  bound  to  seek  him  out,  or,  without 
Co.  v.  Schroeder,  10  N.  D.  110,  95  N.  being  applied  to,  communicate  to 
W.  436.  him  information  as  to  the  facts  with- 


§  141 


SUEETYSHIP  AND  GuABANTY. 


16& 


So  although  the  obligee  in  a  fidelity  bond  should  if  aware  of 
secret  facts  materially  affecting  and  increasing  the  obligation  of 
the  sureties  disclose  the  same  to  the  latter,  a  proper  opportunity 
being  presented,  yet  it  is  said  that  sureties  should  on  the  other 
hand  give  to  the  obligee  the  opportunity  to  make  such  disclosures 
if  they  want  the  protection  of  the  law  and  that  until  such  oppor- 
tunity is  given  it  must  be  presumed,  and  conclusively  presumed, 
that  the  sureties  are  entitled  to  act  upon  their  own  initiative  or 
such  information  as  the  obligor  gives  them.^ 

It  is  the  duty  of  the  surety  to  look  out  for  himself,  and  to  as- 
certain the  nature  of  the  obligations  embraced  in  the  undertak- 
ing f  and  so  the  creditor  is  not  bound  to  inform  the  surety  of  the 
insolvency  of  the  principal.^ 


in  his  knowledge.  But  in  such  case 
he  may  assume  that  the  surety  has 
obtained  information  for  his  guid- 
ance from  other  sources,  or  that  he 
has  chosen  to  assume  the  risks  of 
the  undertaking,  whatever  they  may 
be.  But  if  he  knows,  or  has  grounds 
for  believing,  that  the  surety  is 
being  deceived  or  misled,  or  that  he 
was  induced  to  enter  into  the  con- 
tract in  ignorance  of  facts  materi- 
ally increasing  the  risk,  of  which  he 
has  knowledge  and  he  has  an  op- 
portunity before  accepting  his  un- 
dertaking to  inform  him  of  such  fact, 
good  faith  and  fair  dealing  require 
that  he  should  make  such  disclosure 
to  him;  and,  if  he  accepts  the  con- 
tract without  doing  so,  the  surety 
may  afterwards  avoid  it.  Bank  of 
Monroe  v.  Anderson  Bros.  Min.  & 
Ry.  Co.,  65  Iowa  692,  700,  22  N. 
W.  929,  per  Reed,  J.,  quoted  in 
Barnes  v.  Century  Savings  Bank,  149 
Iowa  367,  128  N.  W.  541;  Putney  v. 
Schmidt  (N.  M.  1911),  120  Pac.  720. 
Must  give  full  information  in  an- 
STver  to  inqniry.  A  creditor  who 
assumes  to  answer  an  inquiry  of 
one  who  contemplates  becoming  a 
surety    touching    any    matter    ma- 


terially affecting  the  risk  of  the  un- 
dertaking should  give  full  informa- 
tion of  facts  within  his  knowledge. 
Barnes  v.  Century  Savings  Bank,  149 
Iowa  367,  128  N.  W.  541;  Putney  v. 
Schmidt  (N.  M.  1911),  120  Pac.  720. 

Where  an  indebtedness  of  a  bank 
cashier  to  the  bank  was  not  disclosed 
to  the  surety  the  latter  was  held  not 
to  be  released.  Ida  County  Savings 
Bank  v.  Seidenstick,  128  Iowa  54, 
102  N.  W.  821. 

Concealment  as  to  character  of 
principal,  an  agent  of  obligee,  see 
Wright  v.  German  Brewing  Co.,  103 
Md.  377,  63  Atl.  807. 

Personal  habits  of  agent  need  not 
be  disclosed.  Aetna  Indemnity  Co. 
V.  Schroeder,  12  N.  D.  110,  95  N.  W. 
436. 

N^on-disclosnre  of  loss  of  property 
of  one  of  makers  of  note  to  surety 
on  reversal  of  same  held  not  to  re- 
lease latter.  First  National  Bank 
V.  Johnson,  133  Mich.  700,  95  N.  W. 
975,  10  Det.  Leg.  N.  403. 

5.  Winter  &  Co.  v.  Forrest  (Ky. 
C.  A.  1911),  140  S.  W.  1005. 

6.  Casoni  v.  Jerome,  58  N.  Y.  321. 

7.  Roper  v.  Sangamon  Lodge,  91 
111.  518;   Ham  v.  Greve,  34  Ind.  18; 


1691  Rights  OF  SuKETY  AS  TO  Creditor.       §§  142,143 

§  142.  Facts  Concealed — Not  Connected  With  the  Contract. — 
In  order  that  a  faihire  to  communicate  facts  by  the  creditor  to 
the  surety  in  respect  to  the  subject-matter  of  the  proposed  con- 
tract should  have  the  effect  of  fraud  upon  the  surety  and  vitiate 
the  contract,  it  must  be  of  facts  which  necessarily  have  the  effect  to 
increase  the  responsibility  or  operate  to  his  prejudice.^  To  vitiate 
a  bond  on  the  ground  of  fraud  by  the  obligee,  there  must  be  a 
fraudulent  concealment  or  something  material  for  the  surety  to 
know.®  The  law  simply  requires  from  the  obligee  to  the  surety 
upon  the  bond  good  faith  and  fair  dealing. 

§  143.  Facts  Developed  Subsequent  to  the  Contract. — In  the 
case  of  a  continuing  guaranty  for  the  undertaking  of  a  servant, 
if  the  master  discovers  acts  of  dishonesty  in  the  servant,  and  after- 
wards continues  him  in  his  service  without  notice  to  the  surety, 
the  latter  is  discharged  as  to  further  dishonesty,  from  the  time  of 
discovery.'*'  The  employer  impliedly  stipulates  that  he  will 
not  knowingly  retain  such  clerk  or  agent  in  his  service  after 
a  breach  of  the  guaranty  justifying  his  discharge,  and  if  he  re- 
tains him  after  such  breach,  the  surety  will  not  thereafter  be 
liable.^^  But  it  is  said  that  mere  passiveness  on  the  part  of  the 
creditor  in  not  enforcing  his  remedy  will  not  of  itself  discharge 
the  surety ;  nor  will  failure  or  negligence  to  give  notice  to  the 
surety  of  the  principal's  prior  default.  The  creditor  under  such 
circumstances  is  not  bound  to  anticipate  inquiry  by  disclosure. ^^ 

Farmers   &   Drovers'   Nat.   Bank   v.  zens'    Deposit    Bank,    31    Ky.    Law 

Braden,  145  Pa.  St.  473,  22  Atl.  1045.  Rep.  1244,  105  S.  W.  130. 

Insolvency   of   principal — Answer  8.  Comstock  v.  Gage,  91  111.  328; 

— Demurrer.    The  obligee  is  held  to  Bostwick  v.  Van  Voorhis,  91  N.  Y. 

be  under  no  obligation  to  voluntar-  353. 

ily  announce  to  the  surety  the  fact  9.  Atlas  Bank  v.  Brownell,  9  R.  I. 

that  his  principal  is  insolvent.     So  168. 

a  demurrer  to  an  answer  alleging  10.  Phillips  v.  Foxall,  L.  R.  7  Q. 

that  the  plaintiff  knew  of  the  prin-  B.  666;   Enright  v.  Falvey,  4  L.  R. 

cipal's   insolvency   at   the   time   the  Jr.  397;    Sanderson   v.  Osten,  L.   R. 

note  was  taken  for  it,  that  if  he  had  8  Ex.  73. 

communicated  such  fact  to  the  de-  11.  Rapp  v.  Ins.  Co.,  113  111.  390; 

fendant   before   he   signed  the  note  Dinsmore  v.  Tidhall,  34  Ohio  St.  411. 

he   would   not   have   signed   it   and  12.  Pickering    v.    Day,    3    Houst. 

that  the  plaintiff  thereby  practiced  (Del.)    474,  533;   Peel  v.  Tatlock,  1 

a  fraud  upon  him,  was  held  to  be  Bos.  &  P.  419. 
properly  sustained.     Sebald  v.  Citi- 


g  144-  Suretyship  and  Guaranty,  170 

Mere  forbearance  by  the  creditor  to  the  principal,  however, 
prejudicial  to  the  surety,  will  not  discharge  him.  The  same  rule 
applies  to  sureties  for  officers  of  corporations.  It  is  not  the  duty 
of  the  corporation  to  give  notice  to  the  sureties  of  the  principal's 
failure  to  make  returns  for  money  received  and  disbursed.^^ 

^  144.  Set-off  and  Recoupment. — The  decisions  are  conflicting 
as  to  whether  the  surety  can  set  off  against  the  creditor  a  debt 
due  by  the  creditor  to  the  principal.  In  many  cases  it  is  held  that 
this  can  be  done.  Thus,  it  is  held  that  whatever  defense  by  way 
of  recoupment  will  avail  the  principal  will  also  avail  the  surety." 
The  rule  is  that  demands  cannot  be  set  off  unless  they  are  mutual 
and  between  the  two  parties  to  the  action ;  that  is,  that  a  joint  debt 
cannot  be  set  off  against  a  separate  debt,  nor  a  separate  debt 
against  a  joint  debt.  But  an  exception  is  made  in  an  action 
against  the  principal  and  his  surety.  So  a  claim  of  the  principal 
against  the  creditor  may  be  set  off.^^  But  other  decisions  hold  that 
the  surety  alone  cannot  set  off  a  claim  of  the  principal  against 
the  creditor,  because  in  such  case  it  is  the  right  of  the  principal 
to  set  up  a  set-off  if  sued,  or  bring  his  separate  action,  and  the 
surety  cannot  make  the  election  for  the  principal  or  do  anything 
to  impair  his  right  of  recovery  in  a  separate  action.^^ 

13.  Massaclnisetts.  —  Watertown  New  Hampshire.  —  Concord  v. 
Ins.  Co.   V.   Simmons,  131   Mass.  85.    Pillsbury,  33  N.  H.  310. 

Pennsylvania. — Pittsburg,  etc.,  R.  New    York. — Loring   v.    Morrison, 

R.  Co.  V.  Shaeffer,  59  Pa.  St.  350.  15  App.  Div.  498,  44  N.  Y.  Supp.  526. 

Virginia. — Richmond,    etc.,    R.    R.  Pennsylvania. — Holllster  v.  Davis, 

Co.  V.  Kasey,  30  Gratt.  21.  54  Pa.  St.  508. 

Tennessee. — Mayor  v.  Kennett,  12  Vermont. — Downer  v.  Dana,  17  Vt. 

Lea  700.              •  518. 

England. — Orme  v.  Young,  1  Holt  England. — Bechervaise    v.    Lewis, 

K.  P.  84.  L.  R.  7  C.  P.  372. 

14.  Waterman  v.  Clark,  76  111.  Unliquidated  damages  arising 
428;  McHardy  v.  Wadsworth,  8  from  breach  of  a  separate  contract 
Mich.  350.  between  the  plaintiff  and  the  maker 

15.  Alabama. — Cole  v.  Justice,  8  of  a  note  may  be  set  off  under  the 
Ala.  793.  provisions  of  the  Georgia  Civ.  Code 

Illinois.— Himrod  v.  Baugh,  85  111.  1895,  §§  3746,  3747.     Pickett  v.  An- 

435;    Hayes  v.   Cooper,   14   111.  App.  drews,  135  Ga.  299,  69  S.  E.  478. 

490.  16.  Graff  v.  Kahn,  18  111.  App.  485; 

Nebraka. — Van  Etten  v.  Koster,  48  Citizens'  Stock  Bank  v.  George,  150 

Neb.  152,  66  N.  W.  1106.  Mo.  1,  51  S.  W.  489;  Gillespie  v.  Tor- 


I7li  Rights  of  Surety  as  to  Cbeditok.  §   144a 

But  it  is  held  that  insolvency  of  one  of  the  parties  is  sufficient 
ground,  in  equity,  for  an  allowance  of  set-oif;  and  though  one  of 
the  parties  seeking  the  set-oJff  be  a  surety  for  the  other,  equity 
will  adjudge  it  in  favor  of  both  against  a  demand  collectible  of 
both/^ 

If  the  principal  debtor  be  a  party  to  the  action  against  a  surety, 
and  the  former  is  insolvent,  the  surety  may  set  off  against  the 
debt  sued  on,  a  debt  due  from  his  creditor  to  the  principal  debtor. 
And  if  the  action  be  against  the  surety  alone,  the  principal  may 
intervene  for  the  purpose  of  defeating  the  recovery  by  the  credi- 
tor, and  for  that  purpose  may  set  off  a  debt  due  him  from  the 
creditor/^  And  the  principal  who  is  insolvent  cannot  collect  a 
debt  which  the  surety  owes  him  without  indemnifying  the  surety. 
He  may  use  his  liability  to  the  principal  as  an  equitable  set-off 
.against  his  debt  to  the  principal.^* 

§  144a.  Notice  of  Default. — It  is  said  that  a  surety  is  obli- 
gated to  know  the  defaults  of  his  principal  and  that  notice  thereof 
is  unnecessary  in  the  absence  of  a  statute  or  provision  of  the  con- 
tract requiring  it.^'^  Frequently,  however,  if  not  generally,  it  is 
a  provision  of  a  bond  that  notice  shall  be  given  of  the  default  of 
the  principal  within  a  certain  time  after  such  default,^^  or  "  im- 

rance,   25  N.  Y.   306;    Phoenix   Iron  See  also  following  cases  as  to  no- 

"Worksi  V.  Rhea,  98  Tenn.  461,  40  S.  tice  being  necessary. 

W.  482.  21.  Arkansas. — Jones  v.  Gaines,  92 

17.  Smith  V.  Felton,  43  N.  Y.  419;  Ark.  519,  123  S.  W.  667  (building 
Coffin  V.  McLean,  80  N.  Y.  560.  contractor's  bond). 

See  Kinzie  v.  Riley's  Exr.,  100  Va.  Connecticut. — City  of  New  Haven 

709,  42   S.  W.  872,  holding  can  not  v.  Eastern  Pav.  Brick  Co.,  78  Conn, 

set  off  damages  for  breach  of  war-  517,  63  Atl.  517  (contractor's  bond), 

ranty.  Georgia. — James   v.  Calder,  7  Ga, 

18.  Becker  v.  Northway,  44  Minn.  App.  707,  67  S.  E.  1125  (check)  ;  Con- 
61,  46  N.  W.  210.  nor  v.  Hodges,  7  Ga.  App.  153,  66  S. 

19.  Tuscumbia   v.   Rhodes,   8   Ala  E.  546   (note). 

206;  Merwin  v.  Austin,  58  Conn.  22  Kentucky. — Fritts    v.    Kirchdorfer 

18   Atl.    1029;    Walker   v.    Dicks,   S(-  (Ky.  1910),  124  S.  W.  882  (note). 

N.  C.  263 ;  Scott  v.  Timberlake,  83  N.  New  Hampshire.— Cilley  v.  Dear- 

C.    382;    Fearle   v.   Dillard,   5   Leigh  born,    75    N.    H.    563,    78    Atl.    496 

(Va.)    30.  (note). 

20.  Linton  v.  Chestnutt-Gibbons  Ohio. — Dienst  v.  Fleischmanu 
Grocer  Co.,  (Okla.  1911)  118  Pac.  Loan  &  Building  Co.,  30  Ohio  Cir. 
385.    Citing  Pingrey,  Suretyship,  §  2. 


144a 


Suretyship  and  Guaranty. 


172^ 


mediately,"  which  is  construed  as  meaning  within  a  reasonable 
time.^^ 

Such  a  provision  is  a  reasonable  one  '^  and  compliance  there- 
with a  condition  precedent  to  liability.^* 

So  where  a  bond  given  in  connection  with  a  building  contract 
requires  a  notice  of  default  by  the  contractor  to  be  given  to  the 


Ct.  R.  537  (bond  of  attorney;  exam- 
ination of  title). 

Oklahoma. — Chicago  Crayon  Co. 
V.  Rogers  (Okla.  1911),  119  Pac.  630. 

PennsylTania. — McKelvy  v.  Berry, 
21  Pa.  Super.  Ct.  276  (note). 

Sufticienej  of  notice  under  statute. 
See  Williams  v.  Ogg  &  Keith  Lum- 
ber Co.,  42  Tex.  Civ.  App.  558,  94  S. 
W.  420;  decided  under  article  3811, 
tit.  84,  Rev.  St.  1895;  Edmonson  v. 
Potts  Adm'r,  111  Va.  79,  68  S.  E.  254, 
decided  under  Code  1904,  §  2890. 

See  the  following  cases: 

Georgia. — Aetna  Indemnity  Co.  v. 
Town  of  Comer  (Ga.  1911),  70  S.  E. 
676;  Scarratt  v.  Cook  Brewing  Co., 
117  Ga.  ISl,  43  S.  E.  413. 

Indiana. — Knight  &  Jilson  Co.  v. 
Castle,  172  Ind.  97,  87  N.  E.  976. 

Kentucky. — Illinois  Surety  Co.  v. 
Garrard  Hotel  Co.  (Ky.  1909),  118 
S.  W.  967. 

Minnesota. — Hormel  &  Co.  v. 
American  Bonding  Co.,  112  Minn. 
288,   128   N.   W.   12. 

Pennsjirania. — McCreery  v.  Na- 
tional Surety  Co.,  226  Pa.  450,  75  Atl. 
674;  In  re  Byer's  Estate,  205  Pa.  66, 
54  Atl.  492. 

Texas. — United  States  Fidelity  & 
Guaranty  Co.  v.  Means  «6;  Fulton 
Iron  Works  (Civ.  App.  1910),  132 
S.  W.  536. 

Virginia. — Granite  Bldg.  Co.  v. 
Scoville's  Admr.,  101  Va.  217,  43  S. 
E.  351. 

Washington. — Lazelle    v.    Empire 


State  Surety  Co.,  58  Wash.  589,  109 
Pac.   195. 

Technical  liolations  held  not  to 
be  breaches  requiring  notice.  La- 
velle  V.  Empire  State  Surety  Co.,  58 
Wash.  589,  109  Pac.  195. 

Sureties  who  by  the  terms  of  a 
contract  for  public  work  may  in 
case  the  work  is  abandoned  assume 
the  contract  and  do  the  work  or 
relet  it  will  be  held  to  have  waived 
such  right  where  after  receipt  of 
the  notice  of  abandonment  they  fail- 
ed to  offer  the  work  completed.  And 
the  fact  that  the  public  authorities 
notified  the  surety  that  they  would 
have  the  work  done  by  another  con- 
tractor does  not  deprive  them  of 
their  right  under  the  contract  to 
complete  the  work  if  they  desire  to 
do  so.  Nick  Peay  Const.  Co  v.  Mil- 
ler  (Ark.  1911),  139  S.  W.  1107. 

22.  Empire  State  Surety  Co.  v. 
Hanson,  184  Fed.  58,  107  C.  C.  A.  1; 
National  Surety  Co.  v.  Long,  125i 
Fed.  887,  60  C.  C.  A.  623;  Fidelity 
&  Deposit  Co.  of  Maryland  v.  Rob- 
ertson, 136  Ala.  379,  34  So.  933; 
Eorcigalupi  v.  Phoenix  Bldg.  & 
Const.  Co.  (Cal.  App.  1910),  112  Pac. 
892;  Thomason  v.  Keeney,  8  Ga. 
App.  852,  70  S.  E.  220. 

Mailing  notice  eleven  days  after 
default  is  not  a  compliance.  Na- 
tional Surety  Co.  v.  Long,  125  Fed. 
887,  60  C.  C.  A.  623. 

23.  Granite  Bldg.  Co.  v.  Saville's 
Admr.,  101  Va.  217,  43  S.  E.  351. 

24.  Knight  &  Jilson  Co.  v.  Castle, 
172  Ind.  97,  87  N.  E.  976. 


173  Eights  of  Surety  as  to  Creditok.  §   144a 

surety  within  a  designated  number  of  days  after  such  default,  a 
failure  to  give  the  notice  will  release  the  surety.  Such  a  provi- 
sion is  a  reasonable  one  and  is  said  to  be  as  binding  upon  the 
owner  as  the  obligation  to  pay  is  upon  the  surety.^* 

Where  a  building  contract  provides  for  the  completion  of  the 
building  on  a  certain  day  and  for  the  payment  of  a  certain  sum 
per  day  as  liquidated  damages  for  failure  to  complete  within  such 
time  and  it  is  provided  by  the  bond  that  immediate  notice  shall 
be  given  of  the  contractor's  failure,  neglect  or  refusal  to  do  or  per- 
form any  matter  or  thing  "  at  the  time  specified,"  it  is  held  that 
the  day  upon  which  the  building  is  to  be  completed  is  the  time 
specified  for  the  completion  of  the  contract  and  that  the  obligee 
is  not  required  to  anticipate  the  possible  default  of  the  contractor 
and  notify  the  company  before  such  date,  especially  in  view  of 
the  provision  as  to  liquidated  damages.  In  such  a  case  notice 
within  a  reasonable  time  has  been  held  sufficient.^^ 

A  provision  in  a  note  that  "  the  sureties  agree  to  be  liable  with- 
out notice,  so  long  as  there  is  any  liability  of  the  principal,  al- 
though the  bank  may  grant  extensions  from  time  to  time  for  the 
payment  of  all  or  any  part  of  this  note,"  is  not  a  limitation  of  lia- 
bility of  the  sureties,  but  an  agreement  in  advance  that  the  time 
for  payment  may  be  extended  without  discharging  them  from  lia- 
bility, and  a  discharge  of  the  principal  in  bankruptcy  does  not 
relieve  them  from  liability.^^ 

Inability  to  serve  a  demand  and  notice  on  one  of  two  sureties 
will  not  release  the  other  surety  from  his  obligation  where  by  the 
contract  there  was  no  provision  that  the  sureties  should  be  served 
with  notice  of  default  and  under  its  terms  there  was  a  liability 
existing  against  them  at  the  time  of  the  default  and  the  question 
of  notice  concerned  merely  the  time  at  which  they  agreed  to  pay, 
which  was  immediately  upon  a  presentation  of  an  itemized  state- 
ment of  the  damages.^^ 

25.  United  States  Fidelity  &  Guar-  Pac.  67,  holding  that  a  notice  sent 
anty  Co.  v.  Rice,  148  Fed.  206,  78  C.  in  four  days  from  date  specified  for 
C.   A.    164;    Beech   Grove    Improve-  completion  was  a  sufficient  compli- 
ment Co.  V.  Title  Guaranty  &  Surety  ance  with  the  terms  of  the  bond. 
Co.    (Ind.  App.   1912),  98  N.  E.  373.       27.  Wolfboro  Loan  &  Bankine  Co.  v. 

See  also  National  Surety  Co.  v.  Rollins,  195  Mass.  323,  81  N.  E.  204. 
Long,  125  Fed.  887,  60  C.  C.  A.  623.       28.  News-Times  Pub.  Co.  v.  Doo- 

26.  Routt  V.  Dils,  40  Colo.  50,  90    little  (Colo.  S.  C.  1911),  118  Pac.  974. 


§    145  SUKETYSIIIP    AND    GuAEANTY.  l74r 

§  145.  Compelling  Creditor  to  Bring  Suit. — The  creditor  is 
imder  an  eqiiital)le  ol)ligation  to  obtain  payment  from  the  principal 
if  he  is  able  to  pay  the  debt.  And  equity  will  interpose  for  a 
good  cause  shown  to  compel  the  creditor  to  sue  the  principal  be- 
fore resorting  to  the  surety.'^  But  this  action  on  the  part  of  the 
surety  is  limited  ordinarily  to  cases  where  his  character  as  surely 
stands  upon  the  face  of  the  instrument  itself;  and  also  where  he 
agrees  to  indemnify  the  principal,  and  also  offers  to  pay  whatever 
the  principal  may  fail  to  pay  under  such  procedure.^'^  So,  where 
the  statute  does  not  control,  and  the  debt  has  become  payable,  the 
surety  may  file  a  bill  in  equity  to  compel  the  creditor  to  proceed 
against  the  principal  for  payment  of  the  debt,  and  thereby  relieve 
himself  against  liability.^^ 

In  some  States  it  is  provided  by  statute  that  by  service  of  writ- 
ten notice  upon  the  creditor  the  surety  can  compel  him  to  sue  the 
principal,  and  if  the  creditor  fails  to  comply  with  the  notice,  the 
surety  is  discharged.^^  But  the  surety  cannot  relieve  himself  from 
liability  by  requiring  the  creditor  to  sue  the  principal  only  where 
the  cause  of  action  has  accrued  against  the  principal.^^  And  such 
statute  is  only  applicable  to  contracts  in  writing,  binding  the 
surety,  and  not  to  contracts  of  suretyship  arising  from  implica- 
tion.^^ And  the  notice  to  sue  must  be  delivered  to  the  creditor  in 
person,  and  not  to  his  agent.^^  And  where  there  are  two  or  more 
sureties  a  notice  under  the  statute  to  sue  given  by  one  surety  in  his 
own  behalf  will  not  operate  to  discharge  another  surety  who  does 
not  join  him  in  the  notice.^® 


29.  Wise  V.   Shepherd,  13  111.  41;  a   provision.     Rich   v.   Warren,   135 
Huey  V.  Pinney,  5  Minn.  310;   King  Ga.  394,  69  S.  E.  573. 

V.  Baldwin,  17  Johns.  (N.  Y.)  384.  33.  Imming  v.  Fiedler,  8  111.  App. 

30.  In  re  Babcock,  1  Story  398.  256. 

31.  Irick    V.    Black,    17    N.    J.    Eq.  34.  Pish  v.  Glover,  154  111.  86,  39 
189;    Kidd   v.   Hurley,   54   N.   J.  Eq.  N.  E.  1081. 

177,  33  Atl.  1057;   King  v.  Baldwin,  35.  Bartlett  v.  Cunningham,  85  IlL 

17  Johns.  (N.  Y.)  384.  22. 

32.  Barnes  v.  Sammons,  128  Ind.  36.  Arkansas. — Wilson      v.      Teb- 
596,  27  N.  E.  747.  betts,  29  Ark.  579. 

Accommodation     maker    of    note  Illinois. — Trustees  v.  Southard,  3i 

who  signs  as  principal  maker  can-  111.  App.  359. 

not  as  against  a  bona  fide  holder  Kentucky. — Letcher   v.    Yantes,    3 

without  notice  avail  himself  of  such  Dana  160. 


17SJ  Rights  of  Surety  as  to  Creditor.  §   146 

§  146.  Effect  of  Notice  by  Surety  to  Creditor  to  Proceed  to 
Collect  Debt. — It  is  provided  in  many  States  that  a  written  no- 
tice from  the  surety  to  the  creditor,  after  the  debt  is  due,  to  pro- 
ceed forthwith  against  the  principal,  will  discharge  the  surety  if 
the  creditor  fails  to  heed  and  act  upon  such  notice."  And  in  some 
States  such  notice  is  not  required  by  statute,  but  the  effect  is  the 
same.^^ 

The  notice,  in  order  to  discharge  the  surety,  must  be  clear  and 
explicit,  so  that  the  creditor  can  fully  understand  its  meaning. 
The  notice  must  be  positive  that  he  will  consider  himself  dis- 
charged unless  the  suit  is  brought,^^  and  collection  to  be  made  by 
due  process  of  law.'*^  x\nd  where  it  is  provided  by  law  that  a 
surety  if  he  desires  to  expedite  payment  may  give  notice,  in  writ- 
ing, to  the  creditor  to  proceed  to  collect  the  debt  after  which  a 
failure  to  act  in  a  certain  time  will  discharge  the  surety,  an  oral 
demand  or  request  to  so  act  is  insufficient.^^ 

If  the  principal  is  a  non-resident  at  the  time  the  notice  is  given, 
euch  notice  does  not  discharge  the  surety.^^  If  the  creditor  is  ig- 
norant of  the  residence  of  the  principal  upon  receiving  notice  to 

Lonisiana. — Barrow  v.  Shields,  13  Ohio. — Clark  v.   Osborn,   41   Ohio 

La   Ann.  57.  St.  28. 

Missouri. — Routan    v.    Lacey,    17  38.  Rawson  v.  Beekman,  25  N.  Y. 

Mo.  399.  552;  Denick  v.  Hubbard,  27  Hun  347; 

Pennsjiyania. — Klingensmith       v.  McCullom   v.    Hinckley,   9   Vt.   143; 

Kllngensmith,  31  Pa.  St.  460.  Wetzel  v.  Sponsler,  18  Pa.  St.  460; 

Vermont. — Alford  v.  Baxter,  36  Vt.  Thompson     v.     Watson,     10     Yevg. 

158.  (Tenn.)    362;    Fidler   v.    Hershy,   90 

37.  United  States.— Ross  v.  Jones,  Pa.  St.  363. 

22  Wall.  576,  22  L.  Ed.  730.  39.  Fidler   v.    Hershy,    90    Pa.    St. 

Alabama. — Hightower  v.  Ogletree,  363;  Savage  v.  Carleton,  33  Ala.  443; 

114  Ala.  94,  21  So.  934.  Bates  v.  Bank,  7  Ark.  394;  Porter  v. 

Georgia. — Timmons      v.       Butler,  First  Nat.  Bank,  54  Ohio  St.  155,  4S 

Stevens  &  Co.    (Ga.   S.  C.  1911),  74  N.  E.   165. 

S.  E.  784.  40.  Goodwin  r.  Simonson,  74  N.  Y. 

Illinois. — Imming  v.  Fiedler,  8  111.  133;    Kaufman    v.    Wilson,    29    Ind. 

App.  256.  504. 

Indiana. — Barnes  v.  Sammons,  128  41.  Timmons  v.  Butler,  Stevens  & 

Ind.  596,  27  N.  E.  747.  Co.  (Ga.  S.  C.  1912),  74  S.  E.  784. 

Iowa. — Graham  v.  Rush,  73  Iowa  42.  Phillips  v.  Riley,  27  Mo.  386; 

451,  35  N.  W.  518.  Rowe  v.  Buchtel,  13  Ind.  38;  Conk- 

Missouri. — Langdon  v.  Markle,  48  lin  v.  Conklin,  54  Ind.  289 ;  Hightow- 

Mo.  357.  er  v.  Ogletree,  114  Ala.   94,  21   So. 

934. 


§  147  Suretyship  and  Guaiianty.  176 

sue  from  the  surety,  it  is  his  duty  to  use  reasonable  diligence  to 
ascertain  such  residence/^  In  some  States,  notice  given  to  the 
creditor  will  not  release  the  surety,  though  the  principal  after- 
wards becomes  insolvent.  The  surety's  remedy  is  to  pay  the  debt 
himself  and  then  sue  the  principal." 


§  147.  Creditor's  Promise  to  Look  to  the  Principal  Only. — A 
parol  promise  of  the  creditor  to  the  surety,  after  the  debt  is  due  that 
he  will  exonerate  the  surety  and  look  to  the  principal  only,  will 
discharge  the  surety,"*^  on  the  ground  that  the  surety,  by  reason 
thereof,  omits  to  pay  the  debt  and  fails  to  secure  himself,  or  he 
may  change  his  position.^"'  If  at  any  time  the  creditor  makes  an 
absolute  promise  to  look  to  the  principal  alone  for  the  payment, 
and  the  surety,  in  reliance  on  that  promise,  surrenders  securities 
held  for  indemnity,  or  is  induced  to  omit  to  procure  security,  or 
otherwise  changes  his  position  with  reference  to  the  principal,  he 
is  thereby  discharged.^^ 

But  the  creditor's  mere  statement  to  the  surety  that  the  debtor's 
responsibility  was  sufficient  security  for  the  debt,  and  that  the 
surety  was  not  to  be  called  upon,  will  not  estop  the  creditor  from 
resorting  to  the  surety,  if  the  claim  was  not  renounced  and  the 
surety  was  not  misled  to  his  disadvantage.*^  Because  such  declara- 
tions are  made  to  be  received  as  expressions  of  opinion.  They 
neither  invite  confidence,  nor  is  confidence  ever  reposed  in  them. 
Standing  alone  they  will  not  discharge  the  surety.''^ 

But  when  the  surety  is  released  by  such  express  promise,  the 
principal  still  remains  liable  for  the  whole  debt.^''  The  liability  of 
the  principal  is  not  changed  by  release  of  the  surety.     Thus,  a 

43.  Cox  V.  Jeffries,  73  Mo.  App.  47.  Whitaker  "  Kirby,  54  Ga.  277; 
412.  Bank  v.  Haskell,  51  N.  H.  116. 

44.  Smith  v.  Freyler,  4  Mont.  489;  48.  Mich.  State  Ins.  Ck).  v.  Soule, 
Hefferlin  v.  Krieger,  19  Mont.  123,  51  Mich.  312,  16  N.  W.  662;  Adams 
47  Pac.  638;  Pintard  v.  Davis,  21  N.  v.  Gregg,  2  Starkie  53. 

J.  L.  632.  49.  Driskell  v.  Mateer,  31  Mo.  235; 

45.  Harris  v.  Brooks,  21  Pick.  Barney  v.  Clark,  46  N.  H.  514;  Bru- 
(Mass.)    195.  baker  v.  Okeson,  36  Pa.  St.  519. 

46.  Thornburg  v.  Madren,  33  Iowa  50.  Mortland  v.  Hines,  8  Pa.  St. 
380;   Wolf  V.  Madden,  82  Iowa  114,  265. 

47  N.  W.  981;  West  v.  Brison,  99  Mo. 
694. 


177i  Eights  of  Surety  as  to  Creditor.       §§  148, 150 

surety  on  a  promissory  note  may  'buy  his  discharge  and  leave  in 
full  force  the  original  debt  against  the  principal."^ 

§  148.  Creditor  Informing  the  Surety  That  the  Debt  is  Paid. — 
When  the  creditor  gives  notice  to  the  surety  that  the  principal 
has  paid  the  debt,  and  such  surety  in  consequence  changes  his 
situation,  as  by  surrendering  securities  or  forbearing  to  obtain  se- 
curity when  he  might,  or  otherwise  has  sustained  loss,  he  is  dis- 
charged, though  the  debt  was  not  paid,  and  such  notice  was  by  mis- 
take and  without  fraudulent  design.  It  is  a  mistake  made  at  the 
peril  of  the  creditor,""  and  works  on  the  principle  of  estoppel. 

§  149.  Surety  May  Compel  Creditor  to  Resort  to  Securities  in 
the  Creditor's  Hands. — At  law  a  surety  will  be  compelled  to  pay 
the  debt,  and  after  that  look  to  the  collaterals  of  his  principal  for 
indemnity ;  but  in  equity,  if  there  be  circumstances  from  which  it 
appears  directly  or  hy  reasonable  inference  that  substantial  injury 
or  prejudice  will  not  result  to  the  creditor  by  the  enforcement,  in 
the  first  instance,  of  the  surety's  right,  and  have  the  debt  paid  from 
the  principal's  property,  the  surety  may  in  case  of  hardship  com- 
pel the  creditor  to  resort  to  the  securities  in  the  creditor's  hands 
or  under  his  control,  the  property  of  the  principal,  in  satisfaction 
of  the  debt  before  coming  upon  him,''^  or  compel  the  creditor  to 
make  the  debt  from  the  principal  who  is  financially  able  to  pay.^* 

§  150.  Right  of  Surety  to  Defend  Action  Brought  Against  His 
Principal. — Sureties  are  allowed,  when  it  is  necessary  for  their 
own  protection,  to  defend  an  action  brought  against  their  principal. 
iSo  if  a  judgment  against  the  principal  is  irregularly  obtained,  the 
sureties  will  bo  heard,  if  they  apply  in  time,  on  motion  to  set  it 

51.  Mcllhenney  v.  Blum,  68  Tex.  112  Fed.  901,  50  C.  C.  A.  602;  Kidd 
197,  4  S.  W.  367.  v.  Hurley,  54  N.  J.  Eq.  177,  33  Ajtl. 

52.  Alabama.— Waters  v.  Creagh,  1057;  Philadelphia  R.  R.  Co.  v.  Lit- 
4  Stewv  &  P.  410.  tie,  41  N.  J.  Eq.  519,  7  Atl.  356. 

Georgia. — Whitaker   v.    Kirby,    54  See  Storn  v.  Bicket,  31  Misc.  R. 

Ga.  277.  (N.  Y.)  683,  66  N.  Y.  Supp.  79,  affirm- 

Kentucky.— Brooking  v.  Bank,  83  ed  62  App.  Div.  617,  71  N.  Y.  Supp. 

Ky.  431.  1149. 

Massachusetts. — Baker  v.   Briggs,  54.  Beaver   v.   Beaver,  23   Pa.   St. 

8    Pick.    122;    Carpenter   v.   King,   9  167;   Dobie  v.  Fidelity  and  Casualty 

Met.  511;  Dewey  v.  Field,  4  Met.  381.  Co.,  95  Wis.  540,  70  N.  W.  482. 

53.  Brown  v.  First  National  Bank, 

12 


§  151         Suretyship  and  Guaeanty.  178 

aside,  and  let  in  to  defend  the  original  action.^^  So  a  guarantor 
or  surety  may  go  into  court  after  suit  is  begun  against  the  prin- 
cipal and  demand  rcasonahle  protection.  And  if  the  creditor  de- 
stroys their  claim  against  the  principal  with  a  view  of  falling  back 
upon  them,  they  will  be  discharged.^** 

§  151.     Subrogation  of  Creditor  to  Surety's  Securities. — When 

the  debtor  has  given  security  to  his  surety  for  the  indemnity  of  the 
latter  only,  the  creditor  is  entitled  to  the  benefit  of  the  same  by 
proceedings  commenced  in  equity  after  the  debt  is  due,  before  the 
surety  has,  in  good  faith,  surrendered  or  discharged  such  security." 
The  right  of  the  creditor  is  derived  through,  and  not  independent 
of,  the  surety,  and  the  creditor  seeking  to  enforce  his  claim  against 
the  surety  is,  in  equity,  entitled  to  subject  to  the  payment  of  his 
debt  the  security  then  subsisting  for  the  personal  indemnity  of  the 
surety  to  the  same  extent  that  the  surety  would  have,  had  he  dis- 
charged the  debt.  There  is  no  element  of  trust  in  such  security  in 
favor  of  the  creditor  until  he  has  taken  proper  steps  to  subject  it  to 
the  payment  of  his  claim.  And  until  the  creditor  has  taken  such 
steps  the  surety  has  a  right  to  release  such  security.^^  Whether  a 
creditor  can  avail  himself  of  the  security  given  to  the  surety  by 
the  debtor,  depends  upon  the  purpose  for  which  it  is  given.  If 
the  security  be  purely  personal  to  indemnify  the  surety,  the  cred- 
itor cannot  have  the  benefit  of  such  security  until  the  surety  is 
actually  damnified,  or,  at  least,  has  become  absolutely  liable  for 
the  debt,  for  the  creditor  must  claim  through  the  surety  by  subro- 

or>.  Jewett   V.   Whitman,   35   Barb.  Bank  v.  Wright,  45  Neb.  23,  63  N.  W. 

(N.  Y.)  208.  126. 

56.  Stark  v.  Fuller,  42  Pa.  St.  320.  New  Jersey.— Meyers  v.  Campbell, 

'57.  United  States.— Swift  &  Co.  v.  59  N.  J.  L.  378. 

Kortrecht,  112  Fed.  709,  50  C.  C.  A.  ]Vew  York.— Phillips  v.  Thompson, 

429;   Russell  v.  Clark,  7  Cranch  69,  2  Johns.  Ch.  418. 

3  L.  Ed.  271.  England.— Wright    v.    Morley,    11 

Connecticut. — Jones    v.    Bank,    29  Ves.  22. 

Conn.  25.  A  subcontractor  is  not  entitled  to 

Iowa. — Rankin  v.  Wilson,  17  Iowa  be  subrogated  to  collateral  taken  to 

463.  indemnify    the    contractor's    surety. 

Massachusetts. — Eastman   v.   Fos-  American   Surety  Co.  v.   Lawrence- 

ter.  8  Met.  19.  ville  Cement  Co.    (U.  S.  C.  C),  110 

Missouri. — Haven  v.  Foley,  18  Mo.  Fed.  717. 

136.  58.  Poole  v.  Lowe,  24  Colo.  475,  52 

Nebraska. — South      Omaha      Nat.  Pac.  741. 


1791  Rights  of  Surety  as  to  C'reditor.  §   151 

gation,  and  until  then  the  surety  has  no  remedy  upon  the  security.^^ 
If  the  security  is  given  for  the  better  security  of  the  debt  itself, 
as  for  its  payment  by  the  principal  debtor,  or  to  provide  the  surety 
with  means  to  pay  the  debt  in  case  of  default,  then,  although  the 
purpose  is  to  indemnify  the  surety  to  the  same  extent,  a  trust  at- 
taches to  the  security  for  the  benefit  of  the  creditor,  to  which  the 
court  will  give  effect.^" 

Where  collateral  security  is  placed  by  the  principal  in  the  hands 
of  his  surety  to  secure  performance  of  a  contract  or  to  provide  a 
fund  for  the  payment  of  damages  occasioned  by  its  breach  the  law 
raises  an  implied  trust  in  favor  of  the  creditor  which  on  maturity 
of  his  debt  he  may  enforce  whether  the  surety  has  been  damnified 
or  not  and  irrespective  of  the  question  whether  the  surety  or  prin- 
cipal or  either  are  insolvent.^^  Thus,  where  a  mortgage  is  given 
by  a  debtor  to  his  surety  for  a  better  security  of  his  debt,  or  to 
provide  the  surety  with  means  to  pay  it,  in  case  of  the  debtor's 
default,  then,  although  the  purpose  is  to  indemnify  the  surety,  a 
trust  attaches  to  the  mortgage  for  the  'benefit. of  the  creditor  which 
the  courts  will  enforce.^^ 

In  some  States  it  is  held  in  order  to  make  such  security  avail- 
able to  the  creditor  in  any  case,  it  must  be  conditioned  for  the  pay- 
ment of  the  debt,  to  be  enforced  on  default  in  its  payment. ^^ 

"When  the  security  is  given  by  a  stranger  to  indemnify  the 
surety,  and  not  for  the  payment  of  the  debt,  a  trust  does  not  attach 
to  it  for  the  creditor,  and  he  cannot  be  subrogated  to  the  rights  of 


59.  Chambers  v.  Prewitt,  172  111.  New  York. — Moses  v.  Murgatroyd, 
615,  50  N.  E.  145;  Ohio  Life  Ins.  Co.  1  Johns.  Ch.  119. 

V.  Reader,  18  Ohio  St.  40.  South   Carolina. — Rouss   v.   King, 

60.  Connecticut.— Homes  v.  Bank,  74  S.  C.  251,  54  S.  E.  615. 

7  Conn.  484.  Yermont.— Pavis  v.  Hulett,  26  Vt. 

Illinois.— Chambers  v.  Prewitt,  172  308. 

111.  615,  50  N.  E.  145.  61.  People  v.  Metropolitan  Surety 

Indiana.- Plant  v.  Storey,  136  Ind.  Co.,  148  App.  Div.   (N.  Y.)    503,  132 

46.  N.  Y.  Supp.  829. 

Massachusetts. — Eastman   v.   Fos-  62.  Chambers  v.   Prewitt,  172   111. 

ter,  8  Met.  19;  Aldrich  v.  Blake,  137  615,  50  N.  E.  145. 

Mass.  584.  63.  Poole  v.  Doster,  59  Miss.  258; 

Missouri. — First  National  Bank  v.  Clay   v.  Freeman,   74  Miss.   816,   20 

Davis,  87  Mo.  App.  242.  So.  871. 

Nebraska. — Meeker  v.  Waldron,  62l 
Neb.  689,  87  N.  W.  539. 


I    152'  SUKETYSHIP    AJND    GUARANTY.  180 

the  surety  f*  nor  is  the  rule  changed  because  the  security  was  given 
by  the  wife  of  the  principal,  for  she  is  a  stranger  to  the  debt.*^'* 

If  the  creditor  is  secured  also  by  a  mortgage  on  the  surety's 
property,  the  other  creditors  of  the  surety  cannot  compel  the  se- 
cured creditor  lirst  to  exhaust  the  remedies  against  the  principal, 
before  resorting  to  the  mortgaged  premises  of  the  surety.^® 


§   152.     Subrogation    of    Surety    to    Creditor's    Rights. — The 

surety  may  be  subrogated  to  the  rights  of  the  creditor  under  cer- 
tain circumstances.  If  the  surety  has  paid  the  debt  of  the  prin- 
cipal, he  may  be  subrogated  to  all  the  securities,  liens,  equities, 
rio-hts,  remedies  and  priorities  held  by  the  creditor  against  the 
principal,  and  he  is  entitled  to  enforce  them  against  the  latter  in 
a  court  of  equity,  or  of  equitable  jurisdiction." 

64.  Hampton  v.  Phipps,  108  U.  S.  Massachnsetts. — Rice  v.  Southgate, 

260,  2   Sup.  Ct.  662,  27  L.  Ed.  719;  16  Gray  142. 

Taylor  V.  Farmers' Bank,  87  Ky.  398,  Minnesota.— Dick     v.     Moon,     26 

9  S.  W.  240;  Leggett  v.  McClelland,  Minn.  309,  4  N.  W.  39. 

39  Ohio  St.  624.  Wisconsin. — Storts  v.  George,  150 

65.  Taylor   v.    Farmers^   Bank,    87  Mo.    1,    51    S.    W.    489;    Hackett    v. 
Ky.  398,  9  S.  W.  240;  Leggett  v.  Mc-  Watts,  138  Mo.  502,  40  S.  W.  110. 
Clelland,  39  Ohio  St.  624.  Nebraska.— First  National  Bank  v. 

66.  Webber  v.  Webber,  109  Mich.  Wilbern,  65  Neb.  242,  90  N.  W.  1126, 
147,  66  N.  W.  960.  93  N.  W.  1002,  95  N.  W.  12;   Wil&on 

67.  Arkansas.— Kisslre     v.     Plun-  v.  Busey,  8  Neb.  39. 

kett-Jarrell  Grocer  Co.   (Ark.  1912),  New    Jersey.— Receivers    of    New 

145  S.  W.  567;  Bank  of  FayettevlUe  Jersiey  Midland  Ry.  Co.  v.  Worten- 

V.   liorwein,  76   Ark.   243,   88    S.   W.  dyke,  27  N.  J.  Eq.  658. 

919,  New  York. — Sternbach  v.  Fried- 
Illinois.— Lochenmeyer  V.  Fogarty,  man,  34  App.  Div.  534,  54  N.  Y.  Supp. 

112  111.  572;  Wliitbeck  v.  Ramsey,  74  608. 

111.  App.  524.  Pennsylvania.  —  Dorscheimer     v, 

Indiana.— Frank     v.     Taylor,     130  Bucker,  7  Serg.  &  R.  9. 

Ind.  145,  29  N.  E.  486.  Texas. — Wilson  v.  Phillips,  27  Tex. 

Iowa.— Gilbert  v.  Adams,  99  Iowa  543;     Bell    v.    Campbell    (Civ.    App. 

519,  68  N.  W.  883;  Keokuk  v.  Love,  1912),  143  S.  W.  953. 

31  Iowa  119.  Virginia. — Rorer   v.    Ferguson,   96 

Kansas.  —  Bartholomew    v.   First  Va.  411,  31  S.  E.  817. 

Nat.  Bank,  57  Kan.  594,  47  Pac.  519.  West  Virginia.- Meyers  v.   Miller, 

Kentucky.— Willingham     v.     Ohio  45  W.  Va.  595,  31  S.  E.  976. 

Nat.   Banking  &  Trust  Co.,   22  Ky.  Sureties  for  the  performance  of  a 

Law  Rep.  708,  56  S.  W.  906,  57  S.  W.  contract  for  the  construction   of  a 

467.  building  which  is  destroyed  by  fire 


181i  Rights  of  Surety  as  to  Cileditoe.  §  152i 

The  right  of  a  surety,  upon  his  discharge  of  the  obligation,  to 
mortgage  security  held  by  the  creditor  is  not  an  independent  right 
but  derivative  from  the  creditor  upon  the  equitable  principle  of 
subrogation.^*  But  the  surety  cannot  ordinarily  claim  the  right 
to  subrogation  until  he  has  paid  the  whole  debt.^^  And  this  right 
of  subrogation  arises  out  of  the  contract  of  suretyship,  and  is  con- 
summated when  the  surety  pays  the  entire  debt."'* 

'So  the  indorser  of  five  notes  given  for  the  purchase  price  of 
land  who  had  paid  three  of  them  to  the  holder  was  held  not  en- 
titled to  enforce  a  vendor's  lien  on  the  land  as  against  the  holder  of 
the  other  two  notes  until  they  were  also  paid.^^ 

The  surety  is  entitled  to  all  the  securities  if  necessary  to  pay 
the  debt,  and  any  person  with  notice  who  takes  such  securities 
is  hound  in  equity  to  hold  them  for  the  indemnity  of  the  surety, 
and  is  subject  to  all  equities  which  the  surety  could  originally  en- 
force ;^^  but,  of  course,  the  surety  must  first  pay  the  debt,  and  then 
he  can  enforce  the  securities  held  by  the  creditor ;"  and  the  surety 
has  a  right  to  exact  of  the  creditor  proper  care  and  diligence  in 
the  management  and  collection  of  such  collaterals,  and  any  waste 
or  misapplication  of  them  will  operate  as  a  release  of  the  surety 
to  the  amount  of  loss  actually  sustained.^* 

The  equitable  right  of  a  surety  to  subrogation  to  mortgage  se- 
curity held  hy  the  creditor  cannot  be  enforced  so  as  to  interfere 

before  its  completion  are  entitled  to  See  also  Kissire  v.  Plunkett-Jar- 

an  allowance  of  any  benefits  received  rell  Grocer  Co.    (Ark.  1912),  145  S. 

by   the    owners   by    reason    of   their  W.  567. 

appropriating  to  their  own  use  after  72.  Atwood    v.    Vincent,    17    Conn. 

the  fire  any  foundation  or  materials  575;  Stevens  v.  Cooper,  1  Johns.  Ch. 

remaining  of  said  building  and  fur-  (N.  Y.)  430;  Lichenthaler  v.  Thomp- 

nished    by    such    sureties.      Bell    v.  son,  13  Serg.  &  R.   (Pa.)   157;   Drew 

Campbell   (Tex.  Civ.  App.  1912),  143  v.  Lockett,  32  Beav.  499. 

E.  W.  953.  73.  Brick  v.  Banking  Co.,  37  N.  J. 

68.  Kissire     v.      Plunkett-Jarrell  L.  307. 

Grocer   Co.    (Ark.    1912),    145   S.   W.  74.  Rogers  v.  Trustees,  46  111.  428; 

567.  Pfirshing   v.    Peterson,   98    111.   App. 

69.  Bartholomew    v.    First    Nat.  70;  Lokenan  v.  North  Missouri  Trust 
Bank,  57  Kan.  594,  47  Pac.  519.  Co.   (Mo.  App.  1910),  126  S.  W.  547; 

See  §§  154,  157,  herein.  Pierce  v.  Atwood,  64  Neb.  92,  89  N. 

70.  Wayland    v.   Tucker,    4    Gratt.    W.  669. 

(Va.)  268.  See  in  this  connection  §§  128,  130. 

71.  Bank   of  Fayetteville   v.   Lor-    132  herein, 
^ein,  76  Ark.  245,  88  S.  W.  919. 


§§  153,  154         SUEETYSHIP  AND  GuABANTY.  182 

with  the  rights  of  the  mortgage  creditor,  whose  equities  are  superior 
to  those  of  the  surety,  for  the  reason  that  the  mortgage  is  given  to 
him  and  not  to  the  surety."^ 


§  153.  What  Securities  the  Surety  is  Entitled  to  Claim. — The 
general  rule  is  that,  in  equity,  a  surety  is  entitled  to  the  benefit 
of  securities  which  the  creditor  holds  against  the  principal,  per- 
taining to  the  identical  debt.'*^  Thus,  where  a  party  is  a  surety 
for  a  partnership  and  for  one  of  the  partners  individually,  he  has 
no  right  to  apply  the  funds  or  securities  received  for  the  partner- 
ship to  the  payment  of  the  debts  of  the  individual."  The  debt  and 
the  parties  must  be  identical,  and  the  securities  be  those  pledged 
for  the  debt  by  the  principal  debtor;  then  on  payment  of  the  debt, 
the  surety  can  be  subrogated  to  the  rights  of  the  creditor.'^  And 
where  the  holder  of  a  note  with  knowledge  that  another  person  had 
signed  it  as  surety  and  that  the  principal  had  executed  a  chattel 
mortgage  to  secure  the  debt  allowed  the  principal  to  remove  the 
mortgaged  property  from  the  state,  he  thus  permitted  the  surety 
to  be  deprived  of  the  right  to  pay  the  debt  and  be  subrogated  to 
the  rights  of  the  holder  against  the  principal  on  the  mortgage.  By 
such  act  the  surety  is  discharged.'^ 

^  154,  When  Surety  Can  Take  Securities. — The  surety  is  a 
creditor  from  the  time  he  becomes  surety;  and  when  he  pays  the 
debt  a  cause  of  action  for  reimbursement  arises  for  substitution 
to  the  securities  held  by  the  principal  creditor.  His  right  becomes 
immediately  consummate  to  have  the  securities  applied  to  his  pay- 
ment.^*' Thus,  where  a  surety  pays  a  note  due  secured  by  a  chat- 
To.  Kissire  v.  Plunkett-Jarrell  78.  Hodgson  v.  Shaw,  3  Myl.  &  K. 
Grocer  Co.  (Ark.  1912),  145  S.  W.  183. 
567  See     Advance     Thresher     Co.     v. 

76.  Copis  V.  Middleton,  1  Turn.  &  Hogan,  74  Ohio  St.  307,  78  N.  E.  436. 
Russ.  224;  Hodgson  v.  Shaw,  3  Myl.  19.  :\Teans  v.  Worthington  (Tex. 
&  K.  183.  Civ.  App.  1912),  147  S.  W.  345. 

See  Iowa  National  Bank  v.  Cooper  80.  Longbridge     v.     Rowland,     52 

(Iowa  1906),  70  N.  W.  625.  Miss.  546. 

77.  Downing  v.  Linvllle,  3  Bush  Eight  does  not  arise  when  surety 
(Ky.)  472;  Stafford  v.  Bank,  132  pays  debt  but  when  he  becomes 
Mass.  315.  surety.     Dixon  v.  Steel,  80  Law  T. 

R.   (N.  S.)   404,  50  Wkly.  Rep.  132. 


183  Eights  OF  Surety  AS  TO  Creditor.        §§  155,156 

tel  mortgage,  he  then  has  a  right  to  subrogation  to  the  creditor's 
rights  and  take  possession  of  the  property  for  his  security,  in  the 
same  manner  as  the  creditor  would  have  if  the  note  had  not  been 
paid.^^  And  so,  if  he  pays  a  note  secured  by  mortgage  upon  land, 
he  is  in  equity  subrogated  to  the  mortgage  security  held  by  the 
mortgagee,^"  and  if  the  mortgagee  releases  the  mortgage  it  does  not 
divest  his  rights  except  as  to  third  parties  without  notice  and  for 
a  valuable  consideration.^^  When  security  is  given,  it  may  be  held 
until  the  whole  de'bt  is  paid  if  there  is  nothing  in  the  contract  to 
the  contrary.** 

§  155,  Stranger  Paying  Debt. — The  right  to  subrogation  ap- 
plies only  to  sureties  or  those  who  have  to  pay  the  debt  to  protect 
their  own  interests.  Therefore,  a  mere  stranger,  or  volunteer,  can- 
not pay  the  debt  for  which  another  is  bound,  and  be  subrogated  to 
the  creditor's  rights  in  respect  to  the  security  given  by  the  debtor.*^ 
However,  if  the  person  so  paying  is  compelled  to  pay  for  the  pro- 
tection of  his  own  interest,  then  he  may  be  subrogated  to  the  rights 
of  thQ  creditor. ^"^ 

§  156.  When  Surety  Will  Not  Be  Subrogated.— The  right  of 
subrogation  is  purely  an  equitable  one,  and  its  application  must  de- 
pend upon  circumstances.  And  whether  its  application  shall  be  so 
great  as  to  include  all  the  rights  of  the  creditor  must  often  depend 
on  whether  it  is  necessary  to  the  protection  of  the  surety  to  apply 
it.*^  Because  equity  will  not  do  that  which  will  be  of  no  benefit 
to  the  party  asking  it  and  only  a  hardship  upon  the  party  coerced.*^ 
And  it  is  never  applied  where  it  will  operate  as  an  injustice  to  the 
creditor.*^ 

81.  Myers  v.  Yaple,  6  Mich.  339;  85.  Bartholomew  v.  First  National 
Torp  V.  Gulseth,  37  Minn.  135,  33  Bank,  57  Kan.  594,  47  Pac.  519;  Mat- 
N.  W.  550.  ley  v.  Harris,  1  Lea.  (Tenn.)   577. 

82.  City  Nat.  Bank  v.  Dudgeon,  65  86.  Hough  v.  Ins.  Co.,  57  111.  318; 
111.   10;    Beaver   v.   Slanker,   94   111.  Young  v.  Morgan,  89  111.  199. 

175;  Woods  v.  Bank,  83  Pa.  St.  57;  87.  In  re  Hewitt,  25  N.  J.  Eq.  210. 

Chrisman  v.  Marman,  29  Gratt.  (Va.)  88.  Joliet,  etc.,  R.  R.  Co.  v.  Healy, 

494.  94  111.  416. 

83.  City  Nat.  Bank  v.  Dudgeon,  65  89.  Bartholomew  v.  First  National 
111.  10.  Bank,  57  Kan.  594,  47  Pac.  519. 

84.  Sleingrehe  v.  Beveling  Co.,  83 
111.  App.  587. 


§    157  SUKETYSIIIP  AND  GUARANTY.  184: 

§  157.  Surety  Must  First  Pay  the  Debt. — Ordinarily  the  cred- 
itor is  entitled  to  full  satisfaction  of  the  debt  before  the  right  of 
subrogation  may  be  invoked  by  the  surety;  so  the  surety  may  not 
interfere  with  any  of  the  creditor's  rights  and  securities  so  long 
as  any  part  of  the  debt  remains  unpaid.^* 

The  sureties'  right  of  subrogation  cannot  be  enforced  until  the 
whole  debt  is  paid ;  and  until  the  creditor  be  wholly  satisfied  there 
ought  to,  and  can,  be  no  interference  wath  his  rights  or  his  securi- 
ties which  might,  even  by  bare  possibility,  prejudice  or  embarrass 
him  in  any  way  in  the  collection  of  the  residue  of  his  claim. ^^ 

The  application  of  the  doctrine  of  subrogation  requires  that  the 
surety  must  have  paid  the  debt  to  the  creditor,  for  the  payment  of 
which  the  principal  was,  in  equity,  primarily  liable,  and  that  in 
paying  the  debt  the  person  so  paying  acted  imder  compulsion  of 
saving  himself  from  loss,  and  not  as  a  mere  volunteer.^^  Still, 
after  the  debt  has  become  due,  the  surety  may  go  into  equity,  with- 
out first  making  payment,  and  compel  the  principal  to  pay  it,  if 
he  is  financially  able.^^ 

In  some  cases,  in  order  to  avoid  circuity  of  action  or  multi- 
plicity of  suits,  equity  will  make  subrogation  of  the  surety  before 
judgment  is  rendered  against  him  or  payment  made.  Thus,  equity 
will  substitute  a  surety  on  a  guardian's  bond  to  the  rights  of  the 
wards,  to  subject  their  homestead  to  the  payment  of  a  debt  due 
by  the  guardian  to  the  wards,  before  requiring  the  surety  to  make 


90.  Arkansas. — Kissire     v.     Plun-'  Jersey  Midland  Ry.  Co.  v.  Worten- 

kett-Jarrell  Grocer  Co.   (Ark.  1912),  dyke,  27  N.  J.  Eq.  658. 

145  S.  W.  567;  Bank  of  Fayetteville  Pennsylvania. — Brough's      Estate, 

V.    Lorwein,   76   Ark.   245,   88   S.  W.  71  Pa.  St.  460. 

919.  91.     Kissire     v.      Plunkett-Jarrell 

Illinois. — Conwell  v.  McCowan,  53  Grocer   Co.    (Ark.    1912),   145   S.   W. 

111.  363.  567;    Bank   of   Fayetteville   v.    Lor- 

Indiana. — Opp   v.  Ward,   125   Ind.  wein,  76  Airk.  245,  88  S.  W.  919;  Re- 

241,  24  N.  E.  974;   Vert  v.  Voss,  74  ceivers  of  New  Jersey  Midland  Ry. 

Ind.  566.  Co.  v.  Wortendyke,  27  N.  J.  Eq.  658. 

Kansas. — Bartholomew     v.     First  92.  Aetna  Life  Ins.  Co.  v.  Middle- 
Nat.  Bank,  57  Kan.  594,  47  Pac.  519.  port,  124  U.  S.  534,  8  S.  Ct.  625,  31  L. 

Kentucky.— Willingham     v.     Ohio  Ed.   537;    Hoover   v.    Epler,    52    Pa. 

Val.   Banking   &   Trust   Co.,   22   Ky.  St.  522;   In  re  Church,  16  R.  I.  231. 

Law  Rep.  708,  56  S.  W.  706.  93.  Moore  v.  Topliff,  107  111.  241; 

New    Jersey. — Receivers^   of    New  Keokuk  v.  Love,  31  Iowa  199;  Hale 

v.  Wetmore,  4  Ohio  St.  600. 


189  Rights  of  Surety  as  to  Ckeditoe.       §§  158,  159 

good  the  guardian's  default,  where  the  wards  are  entitled  to  the 
homestead.®*  And  so  a  surety  may  set  aside  a  fraudulent  convey- 
ance, executed  by  the  principal,  after  becoming  liable  for  the  prin- 
cipal's debt,  hut  before  payment  of  it.^^  And  when  the  creditor 
permits  the  surety  to  be  subrogated  to  his  rights  before  the  debt  is 
paid,  the  principal  debtor  or  other  creditors  cannot  complain.®'^ 

§  158.  What  is  Payment. — A  tender  of  payment  of  the  debt 
by  the  surety  differs  in  no  way  from  tender  in  any  other  payment, 
and  must,  therefore,  'be  unconditional,  where  a  statute  does  not 
control."  So  a  tender  of  payment  to  a  creditor  by  the  surety  with 
condition  that  the  security  must  be  assigned  to  him,  is  not  sufficient 
to  entitle  the  surety  to  subrogation.®^  And  payment  is  fully  made 
when  the  surety  pays  part  and  the  principal  the  balance.  In  such 
case  subrogation  will  accrue  pro  tanto  to  the  extent  of  the  surety's 
payment.®®  And  the  same  would  be  the  effect  if  two  or  more 
sureties  contribute  in  equal  or  unequal  amounts  to  the  complete 
payment;  each  would  be  subrogated  according  to  the  amount  con- 
tributed.^ 

And  payment  by  one  who  stands  in  the  relation  of  surety,  al- 
though it  may  extinguish  the  remedy  or  discharge  the  security  as 
respects  the  creditor,  has  not  that  effect  as  between  the  principal 
and  the  surety.^ 

§  159.  Debtor  and  Creditor. — In  equity  the  surety  is  regarded 
as  creditor  of  the  principal  debtor,  and  in  case  of  insolvency  of 
the  latter,  the  former  may  retain  any  securities  in  his  hands  be- 

94.  State  v.  Atkins,  53  Ark.  303,  13  98.  Forest's  Oil  Co.'s  Appeal.  118 
S.  W.  1097;  Gilbert  v.  Neely,  35  Ark.    Pa.  St.  138,  12  Atl.  442. 

24;   Lusk  v.  Hopper,  3  Bush   (Ky.)  99.  Magee  v.  Leggett,  48  Miss.  139. 

179.  Compare    Allison    v.    Sutherlin,    50 

95.  Longbridge  v.  Bowland,  52  Mo.  274,  where  the  debt  was  only 
Miss.  546.  partly   paid   by   the   surety  and   he 

96.  Matley  v.  Harris,  1  Lea  was  allowed  to  be  subrogated  pro 
(Tenn.)  577.  tanto,  which  is  against  the  weight 

97.  Sanford   v.   Balkley,  30   Conn,  of  authority. 

344;  Richardson  v.  Chemical  Lab-  Evidence  showing  payments,  see 
oratory,  9  Met.  (Mass.)  42.  Sumner  v.  Tuck,  10  Mo.  App.  269. 

As  to  tender  of  payment  see  §  139  1.  Bank  v.  Potaces,  10  Watts  (Pa.) 
herein.  152. 

2,  Gerber  v.  Sharp,  72  Ind.  553. 


§§  160, 161     Suretyship  and  Guaranty.  186 

longing  to  the  principal,  and  his  possession  will  be  sufficient  notice 
to  a  purchaser  of  the  securities.*  And  securities  taken  by  one  of 
two  or  more  sureties  inures  to  the  benefit  of  all.*  And  the  surety 
before  he  suffers  loss  may  use  his  liability  as  such,  as  an  equitable 
counterclaim  or  set-off  against  a  debt  he  owes  his  insolvent  prin- 
cipal, and  this  as  well  against  the  assignee  of  an  overdue  debt  as 
against  the  assigTiee  himself.^ 

§  i6o.  Fraudulent  Conveyances  of  Principal. — A  surety  who 
is  compelled  to  pay  the  principal's  debt,  has  the  right  to  impeach 
a  deed  as  fraudulent  which  was  given  by  the  principal  during  the 
suretyship.*^  The  surety's  contingent  liability  before  he  pays  the 
debt  is  as  fully  protected  against  a  voluntary  conveyance  as  a  claim 
which  is  certain  and  absolute  as  where  he  has  paid  the  debt.  The 
rights  of  the  surety  or  other  contingent  promisor  are  regarded  for 
many  purposes  as  commensurate  in  point  of  time  with  the  date  of 
the  suretyship,  and  not  when  the  surety  actually  paid  the  security 
debt  for  the  principal.  The  claim  of  the  surety  is  considered  as 
having  existed,  so  far  as  to  constitute  him  a  creditor,  at  the  time 
he  incurred  the  contingent  liability.  His  subsequent  payment  of 
the  debt  extends  back  by  relation  to  that  date,  although  no  de- 
mand or  right  of  action  technically  accrues  until  a  subsequent 
date.' 

iSo  whenever  payment  is  made  by  the  surety,  he  is  to  be  con- 
sidered as  a  creditor  of  his  principal  from  the  time  the  debt  was 
created  or  note  was  made  and  delivered.^  And  tliough  the  surety 
has  no  cause  of  action  at  law  until  he  has  paid  the  debt,  he  is  en- 
titled to  protection  against  fraudulent  conveyances  executed  by  the 
principal  since  he  became  surety.^ 

§  i6i.  As  to  Exemptions  of  Principal. — Parties  entering  into 
contracts  are  presumed  to  have  in  view  such  exemption  laws  and 
rights  as  are  in  force  at  the  date  of  the  contract;  in  other  words, 

3.  Crafts  v.  Mott,  5  Barb.  (N.  Y.)  Seward  v.  Jackson,  8  Cow.  (N.  Y.) 
305.  406. 

4.  Elwood  V.  Deifendorf,  5  Barb.  8.  Sargent  v.  Salmond,  27  Me.  539. 
(N.  Y.)  398.  9.  Bragg  v.  Patterson,  85  Ala.  233, 

5.  Walker  v.  Dicks,  80  N.  C.  263.  4   So.   716;    Keel  v.   Larkin,  72   Ala. 

6.  Hatfield  v.  Merod,  82  111.  113.  493;    Choteau  v.   Jones,  11   111.   500; 

7.  Gannard  v.  Eslava,  20  Ala.  732;  Longbridge  v  Bowland,  52  Miss.  546. 


1871  Eights  of  Surety  as  to  Creditor.       §§  162, 163 

the  laws  in  force  enter  into  and  become  a  part  of  the  contract.^"  As 
against  a  surety  who  has  to  pay  the  debt  of  the  principal,  the  right 
of  the  principal  to  homestead  and  other  exemptions,  as  to  their 
full  extent,  are  to  be  determined  by  the  law  which  was  in  force 
when  the  contract  of  suretyship  was  made,  and  not  by  the  law  in 
force  when  the  debt  was  actually  paid.^^  But  if  a  new  liability 
is  created  by  reason  of  a  change  of  parties  or  otherwise,  and  it  is 
taken  in  full  payment  and  discharge  of  the  original  debt,  the  right 
of  exemption  is  measured  by  the  law  in  force  at  the  date  of  the 
new  ohligation.-*^ 


§  162.  When  Surety  Owes  Principal. — As  already  stated,  the 
surety  becomes  a  creditor  of  the  principal  from  the  date  of  his 
suretyship.^^  So  a  surety  has  an  equitable  interest  in  his  own  debt 
to  his  principal,  arising  from  the  implied  contract  of  the  principal 
to  see  him  indemnified;  and  this  equity  will  prevail  over  any 
counter  equity  of  a  subsequent  date.  Thus,  where  the  surety  has 
paid  the  debt  of  his  principal  subsequent  to  an  assignment,  the 
assignee  cannot  collect  the  debt  owed  by  the  surety  to  the  principal, 
because  the  surety's  payment  related  back  to  the  contract  of  surety- 
ship, and  therefore  took  precedence,  which  ean  be  set  off  against 
the  surety  debt  paid." 

If  the  surety  takes  property  from  his  principal  and  agrees  that 
it  shall  satisfy  his  liability  as  surety,  the  surety  is  bound,  and  can- 
not collect  further  from  his  principal,  after  paying  the  debt.^^  On 
the  other  hand,  when  it  appears  to  the  court  that  the  surety  has 
paid  and  discharged  his  liability,  and  the  amount  so  paid  by  him 
is  equal  to  or  greater  than  the  judgment  against  him,  the  court  will 
offset  the  amount  so  paid  by  the  surety  against,  the  judgment.^^ 


§  163.  Payment  of  a  Specialty  or  Judgment. — The  payment  of 
a  bond  or  other  specialty,  or  judgment,  by  a  surety  is  not  gen- 
erally extinguished,  but  is  preserved  by  a  court  of  equity,  but  not 

10.  Gunn  v.  Barry,  15  Wall.  (U.  14.  Barney  v.  Grover,  28  Vt.  391. 
S.)  610,  21  L.  Ed.  212.  15.  Lewis  v.  Lewis,  92  111.  237. 

11.  Keel  V.  Larkin,  76  Ala.  493.  16.  Mattingly  v.  Sutton,  19  W.  Va. 

12.  Keel  v.  Larkin,  76  Ala.  493.  19. 

13.  Beach  v.  Doynton,  26  Vt.  725. 


§  163 


■Suretyship  and  Guaranty. 


18S 


of  law,  for  the  surety's  benefit."    This,  however,  is  a  question  often 
controlled  by  statute. 

In  Illinois  the  surety  may  keep  the  judgment  alive  which  he 
has  paid  for  his  benefit  by  procuring  it  to  be  formally  assigned  to 
a  third  person,  or  he  may  treat  the  judgment  as  satisfied  and  re- 
sort to  his  action  against  the  principal.  And  if  the  judgment  be 
assigned,  the  surety  may  still  treat  it  as  discharged  and  resort  to 
his  action  against  the  principal.^^ 

In  Iowa  the  surety  is  entitled  to  an  assignment  of  the  judgment 
to  himself,  or  to  another  for  his  benefit,  and  equity  will  regard 
the  lien  as  still  subsisting,  and  will  aid  the  surety  in  its  enforce- 
ment.^^ In  Minnesota  he  may  take  an  assignment  of  the  judg- 
ment and  enforce  the  same  against  the  principal,^'^  and  in  iSTew 
York.^^  In  Ohio  the  surety  may  be  substituted  to  the  rights  of 
the  creditor  against  the  principal.^^  Equitable  rules  will  keep  the 
judgment  alive  for  the  benefit  of  the  surety.^^  It  is  the  general 
rule  that  the  payment  of  a  judgment  rendered  against  the  surety 
and  principal,  or  against  the  insolvent  principal  alone,  by  the 
surety,  will  subrogate  the  surety  to  the  benefits  of  the  judgment, 
which  he  may  enforce  against  the  principal.^* 

Still  there  are  several  courts  that  hold  that  by  payment  of  the 
judgment  by  the  surety  against  himself  or  against  him  and  his 


17.  Knight  v.  Morrison,  79  Ga.  55, 
3  S.  E.  689. 

18  Katz  V.  Maessinger,  110  111. 
372. 

See  Kurd's  111.  Stat.  (1895)  ch.  98, 
§  7c. 

19.  Bones  v.  Aiken,  35  Iowa  534. 

20.  Kimmel  v.  Lowe,  28  Minn.  265, 
9  N.  W.  764. 

Benne  v.  Schnecko,  100  Mo.  250, 
13  S.  W.  82. 

21.  Eno  V.  Crooke,  10  N.  Y.  60. 

22.  Peters  v.  McWilliams,  6  Ohio 
St.  155. 

23.  Brown  v.  Beach,  96  Pa.  St.  482. 

24.  Alabama. — Bragg  v.  Patterson, 
85  Ala.  233,  4   So.  716. 

Arkansas. — Newton  v.  Field,  16 
Ark.  216. 


Delaware. — Dodd  v.  Wilson,  4  Del. 
Ch.  399. 

Indiana. — Gerber  v.  Sharp,  72  Ind. 
553. 

Kansas. — Harris  v.  Frank,  29  Kan. 
200. 

Kentucky.— Schoolfield  v.  Rudd,  9 
B.  Mon.  291. 

Louisiana. — Connely  v.  Bong,  16 
La.  Ann.  108. 

Maryland. — Crisfield  v.  State,  55 
Md.  192. 

Michigan. — Sweeney  v.  Lustfield, 
116  Mich.  969,  75  N.  W.  136;  Smith 
V.  Rumsey,  33  Mich.  183. 

Mississippi. — Dinkins  v.  Bailey,  23 
Miss.   665. 

Nebraska. — Eaton  v.  Lambert,  1 
Neb.  339. 


189(  Rights  of  Surety  as  to  Ckeditob.  §  164 

principal,  he  thereby  extinguishes  the  judgment  and  cannot  have 
it  reviewed,  even  in  equity.^" 

§  164.  Extent  of  Subrogation. — The  surety  is  not  entitled  to 
recover  from  his  principal  a  greater  amount  than  he  has  paid  for 
him,  but  he  is  entitled  to  interest  on  that  amount  from  the  date 
of  payment,  and  necessary  costs.  So  if  the  surety  pays  the  debt 
in  depreciated  currency,  he  can  demand  from  his  principal  only 
the  value  of  the  currency  or  other  medium  at  the  time  of  pay- 
ment, and  the  criterion  of  value  is  the  market  value.^®  Nor  will 
the  surety  be  allowed  to  speculate  in  the  obligations  of  his  prin- 
cipal.^^ And  so  where  a  surety  on  a  bond  has  settled  the  same,  he 
■cannot  claim  from  the  principal  more  than  he  has  paid  in  satis- 
faction.^^ 

If  the  sureties  pay  the  creditor  in  his  own  obligations  instead 
of  money,  either  before  or  after  judgment,  this  payment  entitles 
them  to  the  same  indemnity  as  if  paid  in  money  after  judgment. 
So  where  the  creditor  sues  the  sureties  and  they  are  allowed  a  set- 
off to  part  of  his  demand,  their  right  of  subrogation  is  not  limited 
to  the  amount  of  the  judgment  against  them  for  the  balance,  but 
extends  to  the  whole  amount  of  the  creditor's  claim.^^  Because 
the  equities  of  the  sureties  to  subrogation  extend  not  only  to  the 
rights  of  the  creditor  against  the  principal,  but  to  all  rights  of 
the  creditor  respecting  the  debt  which  the  sureties  pay.^*' 

New    Hampshire. — Low    v.    Blod-  See  §  65  as  to  effect  of  judgment 

gett,  21  N.  H.  121.  on  principal. 

New    Jersey. — Durand    v.    Trues-  25.  Whittier  v.  Hemingway,  22  Me. 

dell,  44  N.  J.  L.  597.  238;    Pray    v.    Maine,    7    Cush.    253; 

North  Carolina. — Hanner  v.  Doug-  Minkler  v.  State  ex  rel.  Smithers,  14 

lass,  4  Jones  Eq.  (N.  C.)  263.  Nev.    181,    15   N.   W.    330;    Moore   v. 

South  Carolina. — Garvin  v.  Garvin,  Campbell,  36  Vt.  361. 

27  S.  C.  472.  26.  Hall    v.    Cresswell,    12    Gill    & 

Tennessee. — McNairy  v.  Eastland,  J.    (Md.)    36;    Kenedrick  v.  Forney, 

10  Yerg.  310.  22  Gratt.    (Va.)    748;   Butler  v.  But- 

Texas.— Tutt  v.  Thornton,  57  Tex.  ler,  8  W.  Va.  674. 

35.  27.  Schoonover   v.   Allen,   40   Ark. 

Virginia.— Coffman  v.  Hopkins,  75  132. 

Va.  645.  28.     Martindale   v.   Brock,  41   Md. 

Wisconsin.  —  German   American  571;    Blake   v.   Traders'   Nat.   Bank, 

Sav.  Bank  v.  Fritz,  68  Wis.  390,  32  149  Mass.  250,  21  N.  E.  381. 

N.  W.  123.  29.  Braugh  v.  Griffith,  16  Iowa  26. 

30.  Keokuk  v.  Love,  31  Iowa   119. 


§§  165,  106       SUEKTTSHIP  AND  GuAEANTY.  190 

§  165.  Surety  of  a  Surety, — A  surety  of  a  surety  who  ]ias  paid 
the  obligation,  has  the  same  equity  of  subrogation  as  the  surety 
to  whom  he  was  bound.^^  So  if  a  creditor  exacts  the  whole  of  his 
demand  from  one  of  the  sureties,  that  surety  is  entitled  to  be  sub- 
stituted in  his  place  and  to  a  cession  of  his  rights  and  securities.^^ 
But  a  surety  of  a  surety  being  compelled  to  pay  the  creditor  is 
not  entitled  to  be  subrogated  in  the  place  of  such  creditor  for  the 
purpose  of  enforcing  the  payment  against  the  principal  debtor, 
if  such  debtor  has  paid  his  immediate  surety.^^ 

It  is  entirely  competent  for  one  person  to  become  surety  for 
other  sureties,  or  to  limit  the  extent  of  his  liability  with  respect 
to  the  other  sureties.  The  true  test  of  liability  in  these  cases  is  the 
intent  of  the  parties  as  indicated  by  their  mutual  agreement.^*  And 
a  surety  for  a  surety  is  not  bound  with  the  first ;  that  is,  the  last 
surety  is  not  bound  with  the  one  whose  name  precedes  his  as 
surety  of  the  principal,  and  he  becomes  liable  only  after  the  first.^^ 
The  last  surety  may  sign  as  surety  for  those  preceding  him,  and 
not  for  the  principal,  and  then  he  will  be  held  liable  after  his 
principal  fails."®  Thus,  where  he  signs  a  note  as  security  for  one 
who  is  himself  a  surety  for  the  principal  maker,  he  is  not  liable 
in  a  suit  for  contribution  by  the  one  for  whom  he  signed  as 
security." 

§  166.  Co-Sureties. — A  surety  who  pays  his  principal's  debt 
is  entitled  to  be  subrogated  to  all  the  rights  and  remedies  of  the 
creditor  against  his  co-surety  in  the  same  manner  as  against  the 
principal.^^  iSo  where  there  are  two  sureties  on  bills  of  exchange 
and  specialties,  and  one  of  them  has  paid  more  than  his  portion, 
and  contribution  is  sought,  the  surety  who  has  overpaid  will  be 

31.  Rittenhouse  v.  Levering.  6  Sayles  v.  Sims,  73  N.  Y.  51;  Harris 
Watts  &  S.  (Pa.)  190.  v.  Warner,  13  Wend.  400;   Sherman 

32.  Clieesebrough  v.  Millard,  1  v.  Beach,  49  Vt.  198;  Craythorne  v. 
Johns.  Ch.  (N.  Y.)  409;  King  v.  Bald-  Swinburne,  14  Ves.  16. 

win,  2  Johns.  Ch.  (N.  Y.)   554.  36.  Robertson  v.  Deatharge,  82  111. 

33.  New  York  State  Bank  v.  511;  McCollum  v.  Boughton,  132  Mo. 
Fletcher,  5  Wend.  (N.  Y.)  85.  601,  30  S.  W.  1028,  33  S.  W.  476,  34 

34.  McNeilly  v.  Patchin,  23  Mo.  40;  S.  W.  480;  Singer  Mfg.  Co.  v.  Ben- 
McCoUum  V.  Boughton,  132  Mo.  601,  nett,  28  W.  Va.  16. 

SO  S.  W.  1028,  33  S.  W.  476,  34  S.  W.        37.  Robertson  v.  Deatharge,  82  111. 
4C0.  511. 

85.  Moffit    V.    Roche,   77    Ind.    48;        38.  Hess's  Estate,  69  Pa.  St.  272. 


191  Rights  of  Surety  as  to  Creditor.        §§  107,  1G8 

subrogated  to  the  right  of  his  creditor  to  that  extent,  because  the 
principle  of  substitution  applies  equally  to  cases  arising  between 
co-sureties  and  those  between  surety  and  principal.^^  But  co-sure- 
ties will  be  entitled  to  the  benefits  of  any  compromise  effected  by 
the  paying  surety,  or  any  discounts  that  have  been  obtained  by 
paying  the  debt  in  depreciated  currency,  notes  of  banks  or  any 
other  reduction.'*'^  And  so,  on  the  other  hand,  a  co-surety  must 
contribute  for  costs  of  a  suit  beneficial  to  his  interest." 

§  167.  Joint  Debtors. — A  joint  debtor  who  has  been  compelled 
to  pay  more  than  his  share  of  the  indebtedness,  becomes  a  surety 
for  his  co-debtor,  and  will  be  subrogated  to  the  rights  of  the 
creditor  against  his  co-debtor  for  his  ratable  share  of  the  debt.*^ 
So  where  a  person  signed  a  note,  jointly  and  severally,  as  prin- 
cipal with  the  debtor  which  note  had  never  been  negotiated  it  was 
decided  that  he  should  be  held  as-  surety.^^  But  if  the  debt  is 
compromised  or  paid  in  depreciated  currency,  the  actual  amount 
paid  will  be  the  criterion  of  settlement  and  subrogation.  If  a  co- 
promisor  pays  a  debt  barred  by  the  statute  of  limitations  against 
the  consent  of  his  co-debtor,  he  has  no  right  of  subrogation  as 
against  the  non-consenting  promisor.^* 

§  168.  Successive  Sureties  in  Judicial  Proceedings. — Where 
one  is  surety  for  a  debtor  and  the  creditor  brings  suit  against  the 
principal,  who  appeals  the  case  after  judgment  is  rendered  against 
him,  and  gives  an  appeal  bond  with  surety,  then  the  original  surety 
for  the  principal  debtor,  upon  paying  the  debt,  has  a  right  to  en- 
force such  bond  for  his  own  indemnity  against  the  surety  on  the 
appeal  bond;  that  is,  where  the  judgTnent  has  been  appealed  by 
the  principal  debtor  without  the  consent  of  the  surety,  and  the 

39.  Lidderdole     v.     Robinson,     2       42.  Schoenewald  v.   Dieden,  8  111. 
Brock.  160,  12  Wheat.  (U.  S.)  594,  6  App.  389;  Hall  v.  Hall,  34  Ind.  314; 
L.  Ed.  740;  Crofts  v.  Moore,  9  Watts  Ackerman's  Appeal,  106  Pa.  St.  1. 
451.  43.  Linton     v.     Chestnutt-Gibbons 

40.  Jones  V.  Bradford,  25  Ind.  305;  Grocer  Co.  (Okla.  1911),  118  Pac. 
Kelly  V.  Page,  7  Gray  (Mass.)  213;  385,  citing  Pingrey  on  Suretyship 
Edwards   v.    Sheahaw,   47   Tex.   443.    and  Guaranty,  41. 

See  sec.  194  et  seq.  44.  Waughop   v.   Bartlett,   165   111. 

41.  Connolly  v.  Dolan,  22  R.  I.  124,  46  N.  E.  197;  Ellicott  v.  Nichols^ 
CO,  46  At.  36.  7  Gill.  (Md.)  85. 


§g  169,  170  Suretyship  and  Guaranty.  192 

surety  has  afterwards  paid  the  judgment,  he  has  an  equitable 
right  to  be  subrogated  to  the  benefit  of  the  appeal  bond/^ 

In  such  ease  the  equity  of  the  first  surety  is  superior,  and  he  is 
entitled  to  be  subrogated  to  the  rights  of  the  creditor  against  the 
second  surety.*'^  But  if  the  subsequent  surety  becomes  bound  for 
a  purpose  in  which  both  the  principal  and  the  prior  surety  have 
an  interest,  and  the  assent  of  the  prior  surety  is  expressly  given, 
or  may  be  inferred,  the  rule  is  otherwise,  and  the  last  surety  has 
a  right  to  look  for  his  indemnity  not  only  to  his  principal,  but 
to  such  fixed  securities  as  had  been  given  to  the  creditor  when  his 
engagement  was  entered  into,  and  on  the  faith  of  which  he  may 
have  incurred  his  obligation/^ 

In  some  jurisdictions  neither  the  prior  nor  subsequent  surety 
is  entitled  to  subrogation  against  the  other/^ 

§  169.  Guarantors. — A  guarantor  on  a  promissory  note,  when 
the  maker  fails  to  pay  it,  may  pay  it,  and  the  law  will  imply  a 
promise  on  the  part  of  the  maker  to  repay,  and  the  guarantor  will 
be  subrogated  to  the  rights  of  the  holder  to  whom  he  makes  pay- 
ment ;  ''^  and  the  guarantor  will  be  substituted  to  the  rights  and 
securities  of  the  holder  of  the  note.^" 

§  170.     Surety's  Defense — In  Courts  of  Equity  or  of  Law. — 

Under  the  common  law  it  is  held  that  a  surety  can  seek  relief  only 
in  a  court  of  equity,  for  the  purpose  of  showing  that  he  has  been 
discharged,  or  for  other  relief.  But  the  doctrine  is  now  that 
whatever  will  discharge  a  surety  in  equity  can  be  interposed  in 
a  suit  at  law,  unless  there  be  some  complications  of  interest  as 
would  prevent  a  court  from  affording  adequate  relief.     And  al- 

45.  Friberg  v.  Donovan,  23  111.  48.  Semme&  v.  Naylor,  12  Gill  & 
App.  58;  Parsons  v.  Briddock,  2  J.  (Md.)  358;  Morse  v.  Williams  22 
Vern.  608.  Me.   17;    Holmes  v.  Day,   108  Mass. 

46.  Dimlap  v.  Foster,  7  Ala.  734;  563. 
Bradenburg    v.    Flynn,    12    B.    Mon.  See  sees.  9,  209. 

(Ky.)    397;    Hartwell    v.    Smith,    15  49.  Hamilton    v.    Johnson,    82    111. 

Ohio    St.    200;    Pott    v.    Nathans.    1  39;   Voltz  v.  National  Bank,  158  111. 

"Watts  &  S.   (Pa.)   155.  532,  42  N.  E.  69. 

47.  Mouson  v.  Drakeley,  40  Conn.  50.  Rand  v.  Barrett,  66  Iowa,  731, 
552;  Dillon  v.  Scofield,  11  Neb.  419;  24  N.  W.  530;  Washington  Bank  v. 
Hartwell  v.  Smith,  15  Ohio  St.  200.  Shurtleff,  4  Met.  (Mass.)  30. 


193 


Rights  of  Surety  as  to  Cheditob. 


§  171 


though  relief  may  be  had  in  both  courts,  a  court  of  equity  having 
jurisdiction  will  not  send  a  surety  to  a  court  of  law  to  seek  his 
defense.^^ 

So  where  the  makers  of  a,  note  are  released  by  a  subsequent 
destruction  of  the  collateral  security,  they  may  make  their  defense 
available  in  an  action  at  law,  upon  the  note."  And  generally 
whatever  defense  may  be  set  up  in  a  court  of  equity  against  the 
surety's  liability  may  be  averred  and  proved  in  a  court  of  law."" 

The  decided  American  authority  is  in  favor  of  the  admissibility 
of  the  defense  at  law.  However,  some  courts  hold  that  a  surety 
must  go  into  equity  for  his  defense,^*  and  many  English  decisions 
are  in  accord  with  this  doctrine. ^^ 

§  171.  Remedies  of  Creditor. — The  creditor  may  sue  the  prin- 
cipal alone,  and  the  principal  cannot  complain,  because  it  could 
be  of  no  benefit  to  him  in  any  case  to  have  his  surety  adjudged 
jointly  liable  with  him  upon  the  cause  of  action,  as  the  ultimate 
liability  must  fall  upon  the  principal.^^  Or  the  creditor  may  sue 
Tsoth  in  one  action,^^  or  the  surety  alone.  But  a  judgment  against 
the  surety  is  not  binding  on  the  principal  where  he  was  not  a 
party  to  the  suit.^* 


51.  Philpot  V.  Briant,  4  Bing.  717; 
Mayhew  v.  Crickett,  2  Swan.  185; 
Eyre  v.  Everett,  2  Russ.  382. 

52.  Rogers  v.  Trustees,  46  111.  428. 

53.  Smith  v.  Clopton,  48  Miss.  66; 
Baker  v.  Briggs,  8  Pick.  (Mass.)  122; 
King  V.  Baldwin,  2  Johns.  Ch.  (N. 
Y.)  555;  People  v.  Jansen,  7  Johns. 
(N.  Y.)  332. 

64.  Anthony  v.  Fritts',  45  N.  J.  L. 
1;  Shute  v.  Taylor,  61  N.  J.  L.  256; 
39  All.  663;  Grier  v.  Plitcraft,  57  N. 
J.  Eq.  556,  41  Ml.  425. 

55.  Strong  v.  Foster,  17  C.  B.  201 
Manley  v.  Baycut,  2  El.  &  B.  46 
Price  V.  Edwards,  10  B.  &  C.  578 
Hollier  v.  Eyre,  9  Cl.  &  F.  1. 

56»  Fourth  Nat.  Bank  of  Cincin- 
nati V.  Mayer,  100  Ga.  87,  26  S.  B 
83. 

13 


57.  Wheeler  v.  Rohrer,  21  Ind. 
App.  477. 

58.  Benjamin  v.  Ver  Nooy,  36  App. 
Div.  581. 

Judgment  against  surety  as  eji- 
dence  of  principal's  indebtedness. 
A  duly  and  certified  copy  of  the  rec- 
ord of  the  United  States  District 
Court  of  a  judgment  had  against  a 
surety  on  a  distiller's  bond  is  prima 
facie  or  presumptive  evidence  of  the 
stated  indebtedness  of  the  principal 
in  an  action  subsequently  brought 
against  the  principal  and  co-surety 
thereon.  Miller  v.  Pitts,  152  N.  C. 
629,  68  S.  E.  171. 

A  judgment  against  a  surety  on  a 
bond,  thougli  by  consent,  is  prima 
facie  evidence  of  the  amount  of  the 
surety's  liability  in  a  suit  against 
the  principal  to   foreclose  a  mort- 


§  171 


SUEETYSIIIP  AND  GUARANTY. 


194 


And  in  some  States  if  a  surety  signs  as  a  principal,  he  cannot 
set  up  as  a  defense  tiiat  he  is  a  surety,  in  an  action  at  law.  llis^ 
remedy  is  in  equity  to  restrain  the  collection  of  the  note.^^  But 
this  is  contrary  to  the  great  weight  of  authority.  And  though  in. 
case  of  a  party  who  has  athxed  his  signature  to  an  instrument  it 
may  not  be  apparent  on  the  face  thereof  that  he  signed  it  as  surety, 
yet  where  it  appears  that  he  did  so  sign  with  the  knowledge  of  the 
parties  thereto  or  of  the  holder  of  the  obligation  he  will  be  so  re- 
garded."^'^  Thus,  it  may  be  shown  by  parol  evidence  in  a  court  of 
law  that  one  of  the  makers  of  a  note  signed  as  surety,  which  was 
known  to  the  payee,  though  on  the  face  of  the  note  he  is  a  joint 
maker ;  and  he  is  not  obliged  to  go  into  a  court  of  equity  to  set  up 


gage  given  by  the  principal  to  in- 
demnify tlie  surety  against  such  lia- 
bility. Dunbar  v.  Cazort  &  McGehee 
Co.,  96  Arlt.  308,  131  S.  W.  698. 

59.  Grier  v.  Flitcraft,  57  N.  J.  Eq. 
556,  41  All.  425;  Anthony  v.  Fritts, 
45  N.  J.  L.  1;  Shute  v.  Taylor,  61 
N.  J.  L.  256,  25  Atl.  663. 

60.  United  States.  —  Scott  v. 
Scruggs,  60  Fed.  721,  9  C.  C.  A,  246 
(note) . 

Alabama. — Pollard  v.  Stanton,  5 
Ala.  451  (bond  or  note). 

Georgia. — Camp  v.  Howell,  37  Ga. 
312   (note). 

Indiana.^ — Gipson  v.  Ogden,  100 
lud.  20  (extending  time  of  payment 
of  judgment  on  note). 

Iowa. — Kelly  v.  Gillespie,  12  Iowa 
55,  79  Am.  Dec.  516  (joint  maker  of 
note  may  show  he  was  surety  with 
knowledge  of  payee). 

Louisiana. — Adle  v.  Metoyer,  1  La. 
Am.  254  (maker  of  note  regarded 
as  surety). 

Maine. — Cummings  v.  Little,  45 
Me.  183   (note). 

Maryland. — Yates  v.  Donaldson,  5 
Md.  389,  61  Am.  Dec.  283  (to  bind 
payee  he  must  have  expressly  as- 
serted) . 


Massachusetts. — Guild    v.    Butler, 

127  Mass.  386  (note). 

Michigan. — Stevens  v.  Oaks,  58 
Mich.  343,  25  N.  W.  309  (note). 

Nebraska. — Lee  v.  Burgmann,  37 
Neb.  232,  55  N.  W.  1053  (note). 

New  York. — Wing  v.  Terry,  5  Hill 
160  (bill  of  exchange  accepted  by 
drawee  with  knowledge) . 

North  Carolina. — Goodman  v.  Lit- 
aker,  84  N.  C.  8,  37  Am.  Rep.  603 
(bond). 

Ohio. — Day  v.  Ramey  &  Co.,  40 
Ohio  St.  446  (note  and  judgment  on 
abandonment  of  levy). 

Rhode  Island. — Otis  v.  Von  Storch, 
15  R.  I.  41,  23  Atl.  39  (note;  may 
show  relation  by  extrinsic  evi- 
dence). 

Texas. — First  Nat.  Bank  of  Vic- 
toria V.  Skidmore  (Civ.  App.  1895), 
30  S.  W.  564  (note). 

Vermont.  —  Peake  v.  Estate  of 
Dorwin,  25  Vt.  28  (note). 

"Washington. — Harmon  v.  Hale,  1 
Wash.  Terr.  422,  34  Am.  Rep.  81^ 
(note;  may  show  relation  by  extrin- 
sic evidence). 

Wisconsin. — Irvine  v.  Adams',  48 
Wis.  468,  4  N.  W.  573,  33  Am.  Rep. 
817  (note;  may  show  relation  by 
parol) . 


1951 


Rights  of  Surety  as  to  Creditoe. 


171 


his  equitable  defense.^^  Such  evidence  does  not  alter  or  vary  the 
written  contract,  as  the  facts  found  simply  operate  when  the  knowl- 
edge of  it  is  brought  home  to  the  creditor,  to  prevent  him  from 
changing  the  contract  and  making  a  different  one  with  the  prin- 
cipal debtor  without  the  consent  of  the  surety,  or  from  impairing 
the  rights  of  the  latter  by  releasing  any  security  or  omitting  to 
enforce  the  contract  when  requested.®^ 


61.  Alabama. — Branch  Bank  v. 
James,  9  Ala.  949. 

Colorado. — Drescher  v.  Fulham,  11 
Colo.  App.  62,  52  Pac.  685. 

Georgia. — Stewart  v.  Parker,  55 
Ga.  656. 

Illinois.— Ward  v.  Stout,  32  111. 
399;  Flynn  v.  Mudd,  27  111.  323. 

Iowa. — Piper  v.  Newcomer,  25 
Iowa  221. 

Maine. — Lime  Rock  Bank  v.  Mal- 
lett,  34  Me.  547. 

Massachusetts.  —  Carpenter  v. 
King,  9  Met.  511. 

Michigan. — Smith  v.  Shelden,  35 
Mich.  42. 

Missouri. — Stillwell  v.  Aaron,  69 
Mo.  539. 

Jiew  Hampshire. — Grafton  Bank  v. 
Kart,  4  N.  H.  221. 

New  York. — Hubbard  v.  Gurney, 
€4  N.  Y.  459;  Archer  v.  Douglass,  5 
Denio   307. 

Washington. — Bank  of  Jeffs,  15 
Wash.  231. 

Wisconsin. — Irvine  v.  Adams,  48 
Wis.  468. 

Suretyship  need  not  appear  on 
face  of  instrument.  It  is  not  neces- 
sary that  an  alleged  contract  of 
suretyship  should  appear  upon  the 
face  of  a  promissory  note,  as  it  is 
collateral  to  the  contract,  and  may 
be  proved  by  parol  as  between  the 
makers  thereof  and  the  payee  if  he 
had  notice  of  their  relation  to  each 
other.  Farmers'  Supply  Co.  v.  Weis, 
115  Minn.  428,  132  N.  W.  917. 


Evidence  of  the  disposition  made 
of  the  proceeds  of  notes  and  the  ar- 
rangement under  which  the  money 
was  borrowed  is  admissible  to  aid 
the  jury  in  determining  who  re- 
ceived the  proceeds  of  the  notes  and 
whether  a  person  claiming  to  have 
signed  as  surety  did  in  fact  so  sign 
them.  Rogers  v.  Hazel  (Ky.  C.  A. 
1912),  144  S.  W.  49. 

Under  the  code  in  Nebraska  it  is 
not  the  duty  of  the  jury  to  find 
which  of  the  defendants  is  principal 
and  which  are  sureties.  It  is  the 
duty  of  the  clerk,  under  the  direc- 
tions of  the  court,  in  recording  the 
judgment,  to  certify  which  of  the  de- 
fendants is  principal  and  which  are 
sureties.  Smith  v.  Roehrig,  90  Neb. 
262,  133  N.  W.  230. 

In  an  action  against  the  widow, 
after  the  death  of  her  husband,  on 
a  note,  which  she  resists  on  the  plea 
that  she  signed  it  as  surety  for  her 
husband,  where  it  does  not  appear 
o"  the  face  of  the  note  whether  she 
signed  it  as  principal  or  as  surety, 
she  is  incompetent  to  testify  that 
she  did  not  sign  it  as  principal  or 
that  she  did  not  receive  any  of  the 
money  for  which  it  was  executed  or 
to  say  what  disposition  was  made 
of  the  money.  Black  v.  McCarley's 
Exr.,  31  Ky.  Law  Rep.  1198.  104  S. 
W.  1029. 

62.  Hubbard  v.  Gurney,  64  N.  Y. 
457. 


§  172  Suretyship  and  Guaranty.  196 

So  in  a  suit  by  a  surety  who  has  paid  the  debt  to  recover  from 
one  whom  he  claims  was  a  co-surety  and  liable  to  contribution, 
the  latter  has  the  right  to  show  that  he  was  only  the  accommoda- 
tion party  for  and  therefore  surety  of  the  formcT.  This  is  upon 
the  principle  that  the  parties  to  a  note  may  contract  among  them- 
selves as  to  their  several  proportions  of  liability  and  that  such  a 
contract  will  be  respected  and  enforced  by  the  courts.*^^ 

When  the  fact  of  suretyship  does  not  appear  on  the  face  of  the 
instrument  knowledge  or  notice  of  such  fact  must  be  proved.^* 

The  contrary  or  equitable  doctrine  is  that  the  right  of  the 
surety  to  have  his  status  respected,  does  not  pertain  to  his  con- 
tract, as  an  implied  incident,  but  as  a  mere  equity,  which  it  is 
irregular  to  enforce  in  a  court  of  common  law,  so  long  as  it  is 
important  to  preserve  the  distinction  between  procedure  of  a  legal 
and  that  of  an  equitable  forum.^^ 

§  172.  Death  of  Principal. — When  the  principal  debtor  in  an 
obligation,  to  which  there  are  sureties,  dies,  the  creditor  may  look 
to  the  sureties  as  primarily  liable  to  perform  the  contract,  and 

<J3.  Rogers    v.    Hazel    (Ky.    C.    A.  New  York.— Elwood  v.  Diefendorf, 

1912),  144  S.  W.  49.  5  Barb.  398  (note). 

64.  Alabama.  —  Summerhill        v.  North     Carolina.  —  Torrence     v. 

■Tapp,  52  Ala.  227  (note).  Alexander,    85    N.    C.    143     (note); 

Georgia. — Stewart    v.    Parker,    55  Goodman  v.  Litaker,  84  N.  C.  8,  37 

Ga.  656    (note).  Am.  Rep.  602  (bond). 

Indiana.— Thorp  v.  Parker,  86  Ind.  Tennessee.— Dozier      v.      Lea,      7 

102    (note);    Albright   v.   Griffin,    78  Humph.  520   (note). 

Ind.  182  (note).  Texas. — Bonnell  v.  Prince,  11  Tex^ 

Iowa. — Morgan    v.    Thompson,    60  Civ.  App.  399,  32  S.  W.  855  (note). 

Iowa  280,  14  N.  W.  306  (note).  Washington. — Culbertson    v.    Wil- 

Kentueky.— Neel     v.     Harding,     2  cox,    11    Wash.    &22,    39    Pac.    954 

Mete.  247  (note).  (note). 

Massachusetts. — Wilson    v.    Foot,  Wyoming. — Frank  v.  Snow,  6  Wyo. 

11  Mete.  285  (note).  42,  42  Pac.  484,  43  Pac.  78   (note). 

Michigan. — Smith   v.    Shelden,    35  Defendant  has  burden  of  proof  to 

Mich.  42,  24  Am.  Rep.  529   (note).  establish  defense  that  he  signed  as 

Missouri. — Patterson  v.  Brock,  14  surety.     Vandeventer    v.    Davis,    92 

Mo.  473   (note).  Ark.  604,  123  S.  W.  766;  Farmers  & 

New  Hampshire. — Nichols  v.  Par-  Merchants'  Bank  v.  Shorb,  137  Cal. 

sons,  6  N.   H.   30,  23   Am.   Dec.  706  685,  70  Pac.  771 ;  Handler  v.  Bradley, 

(note).  110  Minn.  66,  124  N.  W.  644. 

New  Jersey. — Kaighn  v.  Fuller,  14  65.  Grier  v.  Flitcraft,  57  N.  J.  Eq. 

N.  .7.  Eq.  419  (bond).  556,  41  Atl.  425. 


197!        Rights  of  Sueety  as  to  Cbeditob.      §  173 

need  not,  unless  so  ordered  by  statute,  present  the  claim  to  the 
administrator  of  the  deceased  principal  for  allowance  and  pay- 
ment.^® But  in  some  jurisdictions  statutory  provisions  provide 
that  where  the  estate  of  the  deceased  is  sufficient  to  pay  the  claims, 
the  failure  of  the  creditor  to  file  his  claim  against  the  estate,  shall 
operate  to  release  the  surety  on  the  contract." 

The  death  of  a  lessee  for  a  term  of  years  does  not  ipso  facto  dis- 
charge from  liability  for  after-accruing  rent  one  who  has  bound 
himself  absolutely  for  the  payment  of  the  rent  for  the  entire  term ; 
and  neither  the  liability  of  the  surety  nor  the  right  of  action 
against  him  is  suspended  during  the  period  between  the  death 
of  the  lessee  and  the  appointment  of  an  administrator.  In  such  a 
case  the  surety  is  not  released  by  the  bare  fact  that  the  widow 
of  the  lessee  was  in  possession  of  the  premises  after  the  death  of 
her  husband  and  during  the  time  when  the  rent  claimed  from 
the  surety  had  accrued,  without  any  evidence  that  she  occupied 
the  premises  by  agreement  with  the  landlord.®^ 

§  173.  Debt  Barred  Against  the  Principal. — Although  the  debt 
may  be  barred  by  limitations  as  against  the  principal,  yet  if 
judgment  may  be  rendered  against  the  surety,  which  is  done  and 
he  pays  it,  such  surety  may  recover  against  the  principal  or 
against  his  estate  in  case  of  his  death.  The  right  of  action  in 
favor  of  the  surety  arises  when  he  pays  the  debt,  and  is  not  based 
upon  the  original  contract  itself,  but  upon  the  implied  contract 
which  exists  by  law  between  the  principal  and  surety  in  such 


66.  Illinois. — People   v.   White,   11  68.  Supplee    v.    Herrman,    16    Pa. 
111.  341.  Super.  Ct.  45. 

Iowa, — Brendenburgh  v.  Snyder,  6  69.  Kentucky. — Wood  v.  Leland,  1 

Iowa  39.  Met.  387. 

Kansas. — Ray  v.  Brenner,  12  Kan.  Maine. — Crosby  v.  Wyatt,  23   Me. 

105.  156. 

New     Hampshire. — Boardwall     v.  New  Hampshire. — Peaslee  v.  Reed, 

Paige,  11  N.  H.  437.  10  N.  H.  489. 

Texas. — Willis    v.    Chowning,    90  Tennessee. — Reeves  v.  Pullian,  7 

Tex.  617,  40  S.  W.  395.  Baxt.    119;    Marshall   v.   Hudson,   9 

Washin^on.  —  MacDonald          v.  Yerg.  57. 

O'Shea,  58  Wash.  169,  108  Pac.  436.  Texas.— Faires    v.    Cockerell,    88 

67.  Waughop  v.  Bartlett,   165   111.  Tex.  428,  31  S.  W.  109,  639. 
124,  46  N.  E.  197. 


§  173  Suretyship  and  Guakanty.  198 

The  surety's  right  in  such  case  is  not  based  upon  subrogation 
to  the  claims  of  the  creditor,  but  on  the  implied  obligation  of  his 
principal  to  reimburse  him  when  he  pays  the  debt,  and  exists 
though  the  debt  to  the  payee,  when  discharged  by  the  surety,  is 
barred  as  to  the  principal  debtor,^"  Thus,  where  the  creditor 
fails  to  present  his  claim  to  the  administrator  of  the  deceased 
debtor  within  the  time  provided  by  statute,  and  the  claim  becomes 
barred,  the  creditor  may  then  bring  suit  against  the  surety  on 
the  secured  debt  and  recover  judgment,  and  after  payment  of  the 
judgment  by  the  surety,  the  latter  may  then  recover  from  the 
decedent's  estate  the  amount  paid,  with  costs  and  interest.^^ 

This  is  on  the  ground  that  the  obligation  of  the  principal  to 
indemnify  the  surety,  does  not  arise  out  of  his  original  contract 
with  the  creditor,  but  is  implied  by  the  law  from  his  relation  to 
the  surety,  and  it  continues  until  the  liability  of  the  surety  is 
terminated.'^  The  principal's  liability  arises  when  the  surety  has 
performed  the  contract.^^ 

There  are  decisions  which  hold  a  contrary  view,  that  when  the 
claim  is  barred  as  against  the  principal  debtor,  it  is  thereby  barred 
also  as  against  the  surety,^*  but  they  are  against  the  great  weight 
of  authority. 

70.  Willis  V.  Chowning,  90  Tex.  73.  Lamb  v.  Withrow,  31  Iowa  164. 
617,  40  S.  W.  395.  74.  Auchawpaugh  v.   Schmidtt,  70 

71.  Pearson  v.  Goyle,  11  Ala.  280;  Iowa  642,  27  N.  W.  805;  Dorsey  v. 
Marshall  V.  Hudson,  9  Yerg.  57;  Wil-  Wyman,  6  Gill  (Md.)  59;  State  v. 
lis  V.  Chowning,  90  Tex.  617,  40  S.  Blake,  2   Ohio  St.   147. 

W.  395.  See  §  190. 

72.  Hollinsbee  v.  Ritchey,  49  In^. 
261. 


1991  Rights  of  Subety  as  to  Principal.  §  174 

CHAPTER  VII. 
Rights  and  Remedies  of  Surety  as  to  Principal. 

Section  174.  Liability  of  Principal  to  Surety. 

175.  Payment  Before  Due  by  Surety. 

176.  Part  Payment  by  Surety. 

177.  The  Surety  Must  Be  Under  a  Legal  Obligation  to  Pay. 

178.  Proper  Action  for  Surety  to  Bring  Against  Principal. 

179.  Surety  to  One  of  Partners. 

180.  Surety  Giving  His  Own  Note  in  Payment  of  the  Debt. 

181.  Debt  Satisfied  Out  of  the  Surety's  Property. 

182.  When  the  Surety's  Right  of  Action  is  Complete. 

183.  Liability  of  Principal  for  Surety's  Costs  and  Interest. 

184.  Recovery  of  Consequential  Damages. 

185.  Payment  of  Usury  by  the  Surety. 

186.  What  Amount  the  Surety  Can  Collect  from  the  Principal. 

187.  Joint  Suit  by  Sureties. 

188.  Payment  of  Judgment  by  Surety. 

189.  Right  to  Take  Indemnity  from  the  Principal. 

190.  When  the  Principal  is  Not  Liable. 

191.  Voluntary  Payment  by  Surety. 

192.  Statute  of  Limitations  as  Between  Surety  and  Principal. 

193.  Relief  of  Surety  in  Equity. 

§  174.  Liability  of  Principal  to  Surety. — The  contract  of  the 
principal  with  the  surety  to  indemnify  him  for  payment  which 
the  latter  may  make  to  the  creditor  in  consequence  of  the  lia- 
bility assumed,  takes  effect  from  the  time  when  the  surety  becomes 
responsible  for  the  debt  of  the  principal.  It  is  then  that  the  law 
raises  the  implied  contract  or  promise  of  indemnity.  N^o  new  con- 
tract is  made  when  the  debt  is  paid  by  the  surety,  but  the  pay- 
ment relates  back  to  the  time  when  the  contract  was  entered  into 
by  which  the  liability  to  pay  was  incurred.  The  payment  only 
fixes  the  amount  of  damages  by  which  the  principal  is  liable  un- 
der his  original  agreement  to  indemnify  the  surety.^     Thus,  the 

1.  Alabama. — Martin  v.  Ellerbe,  70  Iowa. — Wilson    v.     Crawford,    47 

Ala.  335.  Iowa  469. 

Delaware. — Miller  v.  Stout,  5  Del.  Kansas. — Tebery   v.   Swenson,   32 

€h.  262.  Kan.  224,  4  Pac.  83. 

Indiana. — Covey  v.   Neff,   63    Ind.  Maryland. — Williams  v.  Bank,  11 

591.  Md.  242. 


§  174  Suretyship  and  Guaranty.  200 

liability  of  a  principal  in  a  promissory  note  to  his  surety  is  in- 
curred when  the  note  is  executed  and  delivered,  and  not  at  the 
time  the  surety  is  compelled  to  pay  the  same.^  And  the  surety  is 
entitled  to  be  reimbursed  by  his  principal  for  such  sum  as  he  may 
be  compelled  to  pay  in  consequence  of  his  contract  of  suretyship.* 
If  a  stranger  pays  the  debt  and  the  surety  reimburses  him,  the 
surety  can  recover  the  amount  from  the  principal.^ 

In  case  of  a  payment  by  the  administrator  of  the  surety's  es- 
tate, the  principal  then  becomes  liable  to  the  estate  for  the  sum 
so  paid.^ 


Massachusetts. — Rice     v.     South-  California. — Townsend  v.  Sullivan, 

gate,  16  Gray  142.  3  Cal.  A^p.  115,  84  Pac.  435. 

Missouri. — Thomas   v.   Liebke,   81  Kentucky. — Maysville     Telephone 

Mo.  675.  Co.  V.  First  National  Bank,  142  Ky. 

Mississippi.— Pennington   v.   Seal,  578,  134  S.  W.  886,  140  Ky.  51,  13a 

49  Miss.  525.  S.  W.   820. 

iVew    York. — Konitzky    v.    Meyer,  Maine. — Vermeule   v.   York   Cliffs 

40  N.  Y.  571.  Improvement    Co.,    105    Me.    350,    74 

As  between  himself  and  the  party  Atl.  800. 

accommodated,   the    accommodation  Missouri. — Board  of  Education  of 

party  to  a  note  is  in  effect  a  surety,  St.  Louis  v.  United  States  Fidelity 

and   his   right   to   recourse   against  &    Guaranty    Co.    (Mo.    App.    1911), 

the  party  accommodated  is  that  of  134  S.  W.  118. 

a  surety  against  the  principal  New  Hampshire. — Fidelity  &  De- 
debtor.  Rogers  v.  Hazel  (Ky.  C.  A.  posit  Co.  v.  Buckley  (N.  H.  1910), 
1912),    144    S.    W.    49;    Morehead   v.  77  Atl.  402. 

Citizens'  Deposit  Bank,  130  Ky.  414,  New  York. — Blan chard  v.  Blanch- 

113  S.  W.  501,  23  L.  R.  A.  (N.  S.)  141.  ard,    133   App.    Div.    937,    118    N.    Y. 

The  fact  that  one  holding  a  lien  Supp.  1095,  affirming  61  Misc.  R.  497, 

as  materialman,  is  also  a  surety  on  113  N.  Y.  Supp.  882. 

the  contractor's  bond  does  not  pre-  North  Carolina. — Tripp  v.  Harris, 

elude    him     from     maintaining    his  154  N.  C.  296,  70  S.  E.  470. 

lien.     Prescott  Nat.  Bank  v.  Head,  Oregon. — Guernsey        v.        Marks 

11  Ariz.  213,  90  Pac.  328.  (Oreg.   1910),   106   Pac.  334. 

Surety  may  recover  from  an  un-  West  Virginia. — Wilson  v.  Carrico, 

disclosed     principal.       City     Trust,  50  W.  Va.  336,  40  S.  E.  439. 

Safe  Deposit  &  Surety  Co.  v.  Amer-  See  also  cases   cited  in   previous 

lean  Brewing  Co.,  70  App.  Div.   (N.  notes. 

Y.)  5-11,  75  N.  Y.  Supp.  140.  4.  Harper's    Adm'r    v.    McVeigh's 

2.  Washburn  v.  Blundell,  75  Miss.  Adm'r,  82  Va.  751,  1  S.  E.  193. 

266,  22  So.  946.  5.  Townsend    v.    Sullivan,    3    Cal. 

3.  Arkansas. — Griffin       v.       Long,  App.  115,  84  Pac.  435. 
(Ark.   1910),  131  S.  W.  672. 


toil  Rights  of- Surety  as  to  Peincipal.        §§  175,  176- 

§  175.  Payment  Before  Due  by  Surety. — The  surety  may  pay 
the  debt  before  it  is  due,  if  he  thereby  causes  no  injury  to  the 
principal,  but  he  cannot  recover  from  the  principal  until  the  debt 
matures.^  The  surety  need  not  wait  until  the  creditor  sues  him. 
He  may  consult  his  own  safety  and  resort  to  any  measure  cal- 
culated to  assure  him  of  it,  which  does  not  involve  injury  to  the 
principal,  but  he  cannot  compel  payment  by  the  principal  until 
the  maturity  of  the  debt.^  And  the  payment  of  the  debt  before 
maturity  is  not  necessary  voluntary ;  and  so  when  a  co-surety  has 
paid  the  debt  before  maturity,  he  can  compel  contribution  from 
the  other  co-sureties  when  the  debt  becomes  due.^ 

§  176.  Part  Payment  by  Surety. — In  some  cases  the  surety 
can  compromise  the  debt  and  pay  only  part  for  a  full  satisfaction; 
or  he  may  pay  part  and  the  principal  the  balance.  In  such  cases 
the  surety  can  compel  his  principal  to  reimburse  him  for  his  out- 
lay.^ And  if  the  surety  is  obliged  to  make  several  payments,  he 
may  bring  several  suits  for  the  amounts  paid.^'*  Such  may  be  the 
case  when  the  surety  is  compelled  to  pay  coupon  notes  as  they  fall 
due,  or  the  payee  has  the  option,  which  is  seldom  the  case,  to  de- 
mand a  partial  payment  of  the  debt  at  different  times.  But  the 
surety  has  no  right  to  pay  in  installments  when  the  contract  does 
not  so  stipulate,  and  then  bring  several  suits  against  the  principal. 
But  the  rule  is  different  in  Louisiana,  and  in  that  State  the  surety 
is  entitled  to  make  partial  payments,  and  to  bring  a  suit  on  each 

6.  Ross  V.  Menefee,  125  Ind.  432,  Tennessee.— Hall  v.  Hall,  10 
25  N.  E.  545.  Humph.  (Tenn)  352. 

Lienable  claims  may  be  paid  be-  England. — Davies   v.   Humphreys, 

fore   expiration    of   time   for   filing.  6  Mees.  &  W.  152;   Pownal  v.  Fer- 

MacDonald  v.  O'Shea  (Wash.  1910),  rand,  6  Barn.  &  Cr.  439. 

108  Pac.  436.  A    presumption    arises    where    a 

7.  White  V.  Miller,  47  Ind.  385;  surety  makes  a  payment  on  the  ae- 
Armstrong  v.  Gilchrist,  2  Johns,  count  of  hisi  principal  that  it  was 
Cas.   (N.  Y.)   429.  made  at  the  request  of  the   latter. 

8.  Craig  v.  Craig,  5  Rawle  (Pa.)  Blanchard  v.  Blanchard,  133  App. 
91.  Div.    (N.   Y.)    937,    118    N.    Y.    Supp. 

9.  Iowa. — Wilson  v.  Crawford,  47  1095,  affirming  61  Misc.  R.  497,  113 
Iowa  469.  N.  Y.  Supp.  882. 

New  York.— Wright  v.  Butler,  6  10.  Bullock  v.  Campbell,  9  Gill 
Wend.  284.  (Md.)    182. 

Ohio. — Williams    v.    Williams,    5 
Ohio  444. 


§    177  SUBETYSHIP  AND  GuABANTY.  202 

pajrment,  because,  it  is  held,  the  obligation  of  the  principal  toward 
the  surety  is  not  indivisible."  The  Louisiana  court  cites  Pownal 
V.  Ferraud  ^^  as  authority  for  that  doctrine.  But  that  case  does 
not  declare  any  such  doctrine.  It  holds  that  an  indorser,  as  a 
surety,  who  makes  a  part  payment  on  a  bill  or  note,  may  hold  his 
principal  for  the  amount  so  paid;  that  is,  an  indorser  of  a  bill 
being  sued  by  the  holder,  who  pays  part  of  the  sum  mentioned  in 
the  bill,  may  recover  the  same  from  the  acceptor  in  an  action  for 
money  paid  for  his  use. 

That  a  surety  can  at  his  option  pay  the  debt  of  his  principal  in 
partial  payments,  and  then  institute  a  suit  against  his  principal 
for  each  payment,  is  not  the  law,  for  he  has  no  right  to  split  up 
his  actions  for  the  collection  of  a  debt.^^  If  circumstances  should 
compel  him  to  make  partial  payments,  the  rule  might  be  changed, 
and  he  then  could  bring  his  several  actions  against  his  principal. ^^ 

In  case  of  joint  sureties,  when  each  furnishes  money  to  pay  the 
principal's  debt,  an  action  to  recover  from  the  principal  must  be 
separate  and  not  joint.  But  if  the  debt  is  paid  by  an  agent  of  the 
sureties  out  of  his  own  funds,  then  the  action  by  the  sureties  must 
be  joint.^* 

§  177.     The  Surety  Must  Be  Under  a  Legal  Obligation  to  Pay. 

— The  surety  must  be  under  a  legal  obligation  to  pay  the  debt 
in  order  to  hold  his  principal.  After  the  debt  of  the  principal  is 
due,  the  law  implies  that  the  principal  requests  such  payment,  and 
also  implies  a  promise  to  pay  the  surety.  If  the  surety  is  under 
no  legal  obligation  to  pay,  then  the  implied  request  of  the  prin- 
cipal to  pay  the  debt  will  not  arise,  nor  the  implied  promise  to  re- 
pay the  surety,  and  if  the  surety  pays  under  such  circumstances  he 
cannot  recover  from  the  principal. ^^  Thus,  where  the  surety  is  re- 
leased from  liability,  and  he  then  pays  the  debt  of  the  principal, 

11.  Newman  v.  Coza,  2  La.  Ann.  544;  Appleton  v.  Bascom,  3  Met. 
642;  Pickett  v.  Bates,  3  La  Ann.  627.  (Mass.)  169;  Gould  v.  Gould,  8  Com. 

12.  6  Barn.  &  Cr.  439.  (N.  Y.)   168. 

13.  Jones  v  Trimble,  3  Rawle  16.  Kimble  v.  Cummins,  3  Met. 
(Pa.)   388.  (Ky.)   327. 

14.  Bullock  V.  Campbell,  9  Gill  See  also  Nourse  v.  Weitz,  120 
<Md.)    182.  Iowa  708,  95  N.  W.  251;  Farrelly  v. 

1.').  Ross  V.  Allen,  67  111.  317;  Schaettler,  143  App.  Div.  (N.  Y.) 
Whitbeck    v.    Ramsey,    74    111.   App.   273,  128  N.  Y.  Supp.  157. 


203  Rights  of  Surety  as  to  Principal.  §   ITS 

he  cannot  hold  the  principal  liable  to  him  for  the  pa;yTnent.  Be- 
cause he  is  no  longer  a  surety  and  is  not  entitled  to  any  of  the 
rights  growing  out  of  such  relation.  He  occupies  no  better  attitude 
than  any  other  person  paying  the  debt  of  another  without  request 
or  authority,  implied  or  express." 

But  a  request  by  the  principal  to  pay,  and  a  request  to  enter  into 
a  contract  of  suretyship  may  be  implied.^^  In  an  ordinary  case 
where  the  principal  makes  default  in  the  payment  of  the  debt  or 
the  performance  of  the  contract,  the  surety  need  not  wait  for  suit 
to  be  brought,  but  may,  as  soon  as  his  liability  arises,  pay  and  dis- 
charge the  debt.  It  is  not  necessary  to  obtain  consent  of  the  prin- 
cipal, because  the  law  implies  a  request  to  the  surety  so  to  act  in 
behalf  of  his  principal.  And  money  thus  paid  is  paid  for  the  use 
of  the  principal,  and  the  surety  may  maintain  an  action  against  his 
principal  for  it.^^  But  if  the  surety  voluntarily  pays  a  note  for 
which  his  principal  is  not  liable,  he  cannot  recover  from  his  prin- 
cipal.^"  Thus,  where  a  note  is  given  on  an  election  bet,  and  ia 
therefore  void,  if  the  surety  pays  it,  he  has  no  recourse  on  the  prin- 
cipal.^^ 


§  178.  Proper  Action  for  Surety  to  Bring  Against  Principal. — 
The  proper  action  to  bring  against  the  principal  by  the  surety  is, 
at  common  law,  assumpsit  for  money  paid  at  his  request. ^^  So  an 
action  for  money  had  and  received  will  not  lie  for  a  surety  who  has 
paid  the  debt  for  his  principal;  the  action  must  be  for  money  laid 
out  and  expended  for  the  principal.^^  Where  parties  are  jointly 
and  severally  liable  to  the  creditor,  one  who  pays  the  debt  may 

17.  Spillman  v.  Smith,  15  B.  Mon.  See  §  191  as  to  voluntary  pay- 
(Ky.)    134.  ments  by  surety. 

18.  Snell  V.  Warner,  63  111.  176;  21.  Harley  v.  Stapleton,  24  Mo. 
Ricketson  v.  Giles,  91  111.  154;  Hall    248. 

V.  Smith,  5  How.  (U.  S.)  96,  12  L.  Ed.  22.  Mowry  v.  Adams,  14  Mass.  337. 

€6.  At  common  law  sureties  who  paid 

19.  Appleton  v.  Bascom,  3  Met.  the  debt  of  their  principal  could  sus- 
(Mass.)  169;  Hazelton  v.  Valentine,  tain  an  action  in  assumpsit  in  ex- 
113  Mass.  472;  Lidderdale  v.  Robin-  oneration  of  the  loss.  Hudson  v. 
son,  2  Brock.  159;   Pitt  v.  Prussard,  Aman  (N.  C.  1912),  74  S.  E.  97. 

8  Mees.  &  W.  538.  23.  Ford    v.    Keith,    1    Mass.    139; 

20.  Sponhauer  v.  Malloy,  21  Ind.  Powell  v.  Smith,  8  Johns.  (N.  Y.) 
App.  287.  249. 


§  178  Suretyship  and  Guaranty.  204 

bring  an  action  for  money  paid,  against  his  co-surety  for  contribu- 
tion.^" 

Where  the  surety  pays  a  note  of  his  principal,  whether  he  can 
have  the  note  assigned  to  him  and  then  sue  the  principal  upon  it, 
is  a  question  on  which  the  authorities  are  irreconcilable.  It  is  held 
by  one  line  of  decisions  that  where  a  surety  pays  a  note  and  has  it 
assigned  to  him,  he  is  entitled  to  maintain  an  action  of  implied 
assumpsit  for  the  amount  paid,  and  he  can  not  sustain  an  action 
upon  the  note  against  his  principal  f^  because  the  payment  by  the 
surety  goes  to  the  whole  promise  of  the  note,  and  when  the  entire 
promise  of  the  note  is  met  and  extinguished,  it  cannot  afterwards 
be  received  as  a  subsisting  contract  against  the  principal  co-signer, 
and  the  surety  cannot  therefore  bring  suit  on  it  against  the  prin- 
cipal.2« 

So  in  recent  cases  it  is  decided  that  where  a  surety  pays  a  note 
his  remedy  against  his  principal  is  not  on  the  note  which 
he  has  paid  but  upon  the  promise  which  the  law  implies  where  a 
surety  is  compelled  to  advance  money  for  his  principal.^^ 

The  principle  as  to  the  right  of  an  indorser  upon  a  note  is  dif- 
ferent from  that  which  controls  a  surety.  For  a  note  taken  up  by 
the  indorser  who  is  not  directly  liable  on  the  note  may  be  again 
put  in  circulation,  or  upon  the  market,  and  the  promisor  is  not,  in 
such  case,  prejudiced  by  such  a  transfer,  and  the  note  remains  good 
against  the  maker.  Where  the  note  is  taken  up  under  such  circum- 
stances it  is  not  in  fact  paid.  But  where  one  of  several  joint 
obligors  or  promisors,  who  is  liable  directly  upon  the  note  for  its 

24.  Mansfield  v.  Edwards,  136  27.  Yule  v.  Bishop,  133  Cal.  574, 
Mass.  15;  Steckel  v.  Steckel,  28  Pa.  65  Pac.  1094;  McDonough  v.  Nowlin 
St.  233.  (Cal.   App.    1911),    118    Pac.   463. 

25.  Smith  v.  Sawyer,  5  Me.  504;  See  also  Faires  v.  Cockerell,  88 
Frevert  v.  Henry,  14  Nev.  191;  Hulet  Tex.  428,  31  S.  W.  190,  28  L.  R.  A. 
V.  Soullard,  26  Vt.  295;  Copis  V.  Mid-  528,  holding  that  the  right  to  re- 
dleton,  1  Turn.  &  Russ.  224;  Hodg-  cover  is  upon  the  implied  promise 
son  V.  Shaw,  3  Mylne  &  K.  183.  and  not  on  the  theory  of  subroga- 

26.  Joyce  v.  Joyce,  1  Bush  (Ky.)  tion.  Yndo  v.  Rivas  (Tex.  Civ.  App. 
474:  Bryant  v.  Smith,  10  Cush.  1911),  142  S.  W.  920;  Hays  v.  House- 
fMass.)  171;  Hopkins  v.  Farwell,  32  wright  (Tex.  Civ.  App.  1911),  133  S, 
N.  H.  425.  W.  922. 

See  Kurd's  111.  Stat.   (1895),  1062. 
sec.  7c. 


205  Eights  of  Surety  as  to  Pbincipal.  §  179 

whole  amount,  pays  such  note,  the  note  is  necessarily  extinguished, 
and  hence  a  surety  cannot  use  it  against  his  principal.^^ 

The  other  line  of  authorities  hold  that  the  payment  of  a  note  by 
the  surety  is  not,  as  between  himself  and  the  principal,  an  extin- 
guishment of  the  same,  and  the  surety's  right  of  action  against  the 
principal  is  upon  the  note,  and  not  on  implied  assumpsit,^^  because 
the  surety  may  be  substituted  to  the  place  occupied  by  the  creditor, 
not  only  as  to  collaterals,  but  as  to  the  original  note.^'* 


§  179.  Surety  to  One  of  Partners. — The  surety  can  look  for  re- 
imbursement only  to  the  rights  of  his  principal,  and  not  to  a 
stranger.  So  where  a  surety  is  on  the  bond  of  one  of  several  part- 
ners, he  cannot  look  to  the  partnership  for  indemnity,  if  he  has 
to  pay  the  debt,  though  the  bond  was  given  to  secure  a  partnership 
debt.  The  surety  cannot  charge  any  other  person  as  his  principal 
€xcept  the  one  who  was  principal  at  the  time  of  making  the  con- 
tract of  suretyship.  No  privity  can  exist  between  the  parties  ex- 
■cept  that  which  arises  on  the  bond  or  contract,  and  implied  assump- 
sit cannot  arise  beyond  the  parties  on  the  bond  or  in  the  contract.^^ 

In.  like  manner,  where  a  promissory  note  is  knowingly  taken  by 
a  creditor  of  one  partner  for  his  separate  debt,  but  signed  by  such 
partner  in  the  name  of  the  firm,  but  without  the  consent  of  the 
other  partners,  and  also  executed  by  a  person  who  supposed  he  was 
surety  for  the  firm,  it  is  not  binding  upon  the  partnership,  nor 
upon  the  surety.^^  The  instrument  must  show  the  privity  between, 
the  parties,  and  cannot  be  extended  beyond  such  limits.^^ 

In  the  case,  however,  of  one  who  is  a  volunteer  surety  for  a 
partnership  it  is  declared  that  it  is  just  that  the  partnership  prop- 
erty and  the  property  of  each  of  the  partners  should  be  made  to 
respond  before  recourse  is  had  to  the  surety.^* 


28.  Davis  v.  Stevens,  10  N.  H.  186.  Y.)  213;  Krafts  v.  Creighton,  3  Rich. 

29.  Tutt  V.  Thornton,  57  Tex.  35,  (S.  C.)   273. 

following    Sublet    v.    McKinney,    19  82.  Hagar    v.    Mounts,    3    Blackf. 

Tex.    438,   and   overruling   Hollinan  (Ind.)   57. 

V.  Rogers,  6  Tex.  91.  33.  Harter    y.    Moore,    5    Blackf. 

80.  Lumpkins  v.  Mills,  4  Ga.  343.  (Ind.)    367. 

Compare  Boyd  v.  Beville,  91  Tex.  34.  Empire    State    Surety    Co.    v. 

439,  44  S.  W.  287.  Ballou  (Wash.  1911),  118  Pac.  923. 

31.  Tom  V.  Goodrich.  2  Johns.  (N. 


§  180  Suretyship  and  Guaranty.  206 

§  1 80.  Surety  Giving  His  Own  Note  in  Payment  of  the 
Debt. — The  surety  may  pay  the  principal's  debt  after  due,  by 
giving  his  own  negotiable  note,  provided  the  creditor  receives  it  as 
payment,  and  thereupon  may  maintain  an  action  against  the  prin- 
cipal for  reimbursement.^" 

The  giving  of  a  note  by  a  surety  for  the  debt  of  his  principal 
constitutes  a  payment  as  between  them  where  it  is  accepted  in  pay- 
ment and  extinguishment  of  the  first  note  and  he  has  an  action  to 
recover  tlie  amount  of  the  first  note  from  the  principal  as  for 
money  paid  for  his  use  though  his  own  note  has  not  been  paid.^^ 
However,  the  authorities  are  not  uniform  upon  this  subject.  In 
some  of  the  States  it  is  held  that  the  surety  cannot  recover  of  the 
principal  until  he  has  paid  the  money,  and  that  the  giving  of  a 
note  is  not  sufficient."  Many  of  the  cases  hold  that  if  the  surety 
discharges  the  debt  by  his  negotiable  note,  he  can  maintain  an  ac- 
tion against  the  principal ;  but  if  he  pays  the  debt  by  means  of  a 
bond  or  any  non-negotiable  instrument,  he  cannot  maintain  an  ac- 
tion until  he  pays  it,  because  such  non-negotiable  instrument  is  not 
analogous  to  money.^^ 

The  reason  of  the  rule  is,  that,  if  the  creditor  takes  the  negotiable 


35.  Indiana. — White   v.   Miller,   47  351;    Brisindine   v.    Martin,    1    Ired. 
Ind.  385.  (N-   C.)    286;    Nowland  v.  Martin,   1 

Iowa. — Sapp    V.    Aiken,    68    Iowa  Ired.    (N.   C.)    397;    Ljnich   v.   Han- 

699,  28  N.  W.  24.  cock,  14  S.  C.  66. 

Kansas. — Rizer  v.  Callen,  27  Kan.  38.  California. — Stone  v.  Hammell, 

339.  83  Cal.  547,  23  Pac.  703. 

Kentucky.  —  Maysville  Telephone  Indiana. — Romine   v.    Romine,    59 

Co.  V.  First  National  Bank,  142  Ky.  Ind.    346;    Bennett   v.    Buchanan,    3 

578,  134   S.  W.   886,  140  Ky.  51,  130  Ind.  47. 

S.  W.  820.  Missouri. — Huse  v.  Ames,  104  Mo. 

Massachusetts.  —  Doolittle         v.  91,  15  S.  W.  965. 

Dwight,  2  Met.  561.  New  York. — Cummins  v.  Hockley, 

New  Hampshire. — Pearson  v.  Par-  8  Johns.  202. 

ker,  3  N.  H.  366.  Pennsylvania. — IMorrison    v.    Ber- 

New    York. — Auerbach    v.    Rogin,  key,  7  Serg.  &  R.  238. 

40   Misc.   R.    (N.   Y.)    695,   83   N.   Y.  South    Carolina. — Peters    v.    Bay- 

SuFp.  154.  hill,  1  Hill  (S.  C.)  237. 

36.  IMcDonough    v.    Nowlin     (Cal.  Texas. — Boulware   v.   Robinson,   8 
App.   1911),   118    Pac.   463;    Yndo  v.  Tex.  327. 

Rivas   (Tex  Civ.  App.  1911),  142  S.  Wisconsin.— Barth    v.     Graf,     101 

W.  920.  Wis.  27,  76  N.  W.  1100. 

37.  Romine    v.    Romine,    59    Ind. 


2071  Rights  of  Surety  as  to  Principal.        §§   181,  182 

note  of  the  surety  as  absolute  payment,  the  surety  can  then  sue  the 
principal  for  the  debt,  which  must  of  course  be  done ;  by  giving 
his  own  obligation  he  discharges  the  original  debt  of  the  principal, 
and  the  latter  is  as  much  benefited  as  if  he  had  discharged  it  by 
actual  payment  of  money.  But  the  rule  must  be  applied  only 
where  the  surety,  by  giving  his  note,  has  extinguished  the  original 
debt.  This  rule  has  been  criticised  because  the  surety  may  recover 
the  whole  amount  from  his  principal  and  never  pay  his  own  note, 
or  get  the  debt  reduced  by  compromise,  and  thus  violate  the  card- 
inal rule  that  the  surety  shall  not  speculate  out  of  the  principal. 


§  i8i.  Debt  Satisfied  Out  of  the  Surety's  Property.— If  the 
surety  pays  his  principal's  debt  by  giving  property,^^  or  if  his  prop- 
erty be  taken  on  legal  process,^°  he  can,  at  once,  bring  action  against 
his  principal  for  reimbursement.  Thus,  where  the  surety's  land 
has  been  levied  on  to  satisfy  the  debt  of  his  principal,  he  may  main- 
tain an  action  against  the  principal  for  money  paid ;"  and  so  by 
paying  the  principal's  debt  in  land,  the  surety  can  begin  immediate 
action  against  his  principal  for  money  paid  and  expended  for  the 
latter.''^ 

§  182.     When  the  Surety's  Right  of  Action  is  Complete. — It  is 

settled  that  no  action  can  be  maintained  by  the  surety  upon  an 
implied  promise,  if  the  principal  has  made  default,  without  first 
making  payment  of  the  debt/^  except  where  by  statute  the  surety 

S9.  Bonney  v.  Seely,  2  Wend.  (N.  Indiana. — Covey   v.   Neff,   63    Ind. 

Y.)  481.  392. 

See,   also,   Townsend  v.   Sullivan,  Maine. — Vermeule    v.    York    Cliffs 

3  Cal.  App.  115,  84  Pae.  435.  Improvement   Co.,    105    Me.    350,    74 

40.  Clemens   v.   Prout,  3   Stew.   &  Atl.  800. 

P.  (Ala.)  345;  Burns  v.  Parish,  3  B.  Minnesota. — Kimmel    v.   Lowe,   28 

Mon.   (Ky.)   8.  Minn.  265,  9  N.  W.  764. 

41.  Lord  V.  Staples,  23  N.  H.  448.  Mississippi.  —  Weir-Booger     Dry 

42.  Bonney  v.  Seely,  2  Wend.  (N.  Goods  Co.  v.  Kelly,  80  Miss.  64,  31 
Y.)  481.  So.  808. 

43.  Alabama. — Cooper  v.  Parker  Missouri. — Hearn  v.  Keath,  63  Mo. 
(Ala.    1912),    57    So.    472;     Lane    v.  84. 

Westmoreland,  79  Ala.  372.  Oregon. — Guernsey  v.  Marks  (Ore. 

California.— Stone  v.  Hammell,  83   1910),  106  Pac.  334. 
Cal.  547,  23  Pac.  703.  Vermont.— Bullard    v.    Brown,    74 

.Vt.  120,  52  AO.  422. 


§  182  Suretyship  and  Guakanty.  208 

may  be  permitted  to  sue  in  certain  cases."  And  it  is,  of  course, 
competent  for  the  parties  to  so  frame  their  contract,  either  by  the 
terms  of  the  principal  contract,  or  by  a  separate  independent  con- 
tract, as  to  authorize  the  surety  to  proceed  against  the  principal, 
or  against  the  independent  security  given  by  the  principal  to  the 
surety,  at  any  stated  time,  independent  of  the  surety's  prior  pay- 
ment of  the  principal  debt/^  'An  exception  exists  also  where  the 
principal  has  broken  his  promise  to  do  or  refrain  from  doing  some 
particular  act  or  thing  or  to  save  the  surety  from  some  charge  or 
liability.  Thus,  where  the  maker  of  a  note  agrees  with  the  surety 
to  pay  the  amount  of  the  note  to  the  payee  on  a  given  day,  but 
makes  default,  the  surety  can  recover  from  his  principal  without 
first  making  payment  of  the  note.^^ 

In  like  manner,  where  a  partnership  is  dissolved  by  one  partner 
leaving  the  firm  with  the  debts  outstanding,  and  a  new  firm  agrees 
with  the  outgoing  partner  to  pay  the  debt  of  the  old  partnership 
and  save  him  harmless  from  any  costs,  trouble  or  liability  on  the 
account  of  the  same,  upon  default  of  the  new  firm,  the  partner 
who  withdrew  can  recover  against  the  new  firm  without  first  pay- 
ing such  debts.^^  When  an  obligation  to  do  a  particular  thing  or 
to  pay  a  debt  for  which  the  covenantee  is  liable,  or  to  indemnify 
against  liability,  is  broken,  the  right  of  action  is  complete  upon  the 
principal's  failure  to  do  the  particular  thing  he  agreed  to  perform 
or  to  pay  the  debt  or  discharge  the  liability.^* 

If  the  contract  be  one  of  indemnity  simply,  and  nothing  more, 
then  damages  must  be  shown  before  the  party  indemnified  is  en- 
titled to  recover;  but  if  there  be  an  affirmative  spontract  to  do  a 
certain  act  or  to  pay  a  certain  sum  or  sums  of  money,  then  the 
surety  can  sue  the  principal  before  paying  the  debt  to  the  creditor.^^ 

44.  Dodder  v.  Moberly  (Okla.  46.  Loosemore  v.  Radford,  9  Mees. 
1911),  114  Pae.  714.  &  W.  657. 

45.  Cooper  v.  Parker  (Ala.  1912),  47.  Lathrop  v.  Atwood,  21  Conn. 
57  So.  472.  117. 

A  surety  or  guarantor  cannot  re-  48.  Kohler    v.    Mattage,    72    N.    Y. 

cover  indemnity  from  the  principal  259;     Merchants    &    Manufacturers' 

or  indemnitor  until  he  has  paid  the  Nat.    Bank   of   Middletown   v.    Cum- 

debt,  unless  there  is  a  clause  in  the  ings,   149   N.   Y.   360,   44   N.   E.   173; 

contract  of  indemnity  which  waives  Barth  v.  Graf,  101  Wis.  27,  76  N.  W. 

this  general  rule.     Cooper  v.  Parker  1100. 

(Ala.    1912),    57    So.    472;     Lane    v  49.  3Iichigan.— Hall    v.    Nash,     10 

Westmoreland,  79  Ala.  374.  Mich.  303. 


209  Rights  of  Surety  as  to  Principai*  §   183 

§  183.     Liability  of  Principal  for  Surety's  Costs  and  Interest. — 

The  surety  can  recover  back  the  money  paid  by  him  for  the  prin- 
cipal's debt  with  interest.^*  The  surety  can  also  recover  the  rea- 
sonable costs  he  has  been  compelled  to  pay  in  his  action  brought  to 
recover  from  the  principal.^^  Upon  this  implied  contract  the  surety 
cannot  recover  a  greater  amount  than  he  has  paid  for  the  prin- 
cipal with  interest.  >So  upon  an  action  to  reimburse  himself  for  a 
payment  of  a  note  which  he  had  signed  providing  for  attorney  fees 
upon  its  collection,  he  cannot  recover  for  such  fees,  for  the  action 
is  upon  the  implied  promise,  and  not  upon  the  note.^^  But  in 
those  States  where  the  surety  can  sue  on  the  note  which  he  has 
paid  for  his  principal,  he  can  recover  attorney's  fees  stipulated  in 
the  note,^^  because  he  is  subrogated  to  the  place  of  the  creditor,  who 
might  collect  such  principal  with  interest  and  also  the  attorney 
fees.^*  And  where  a  principal  has  given  a  note  to  a  surety  promis- 
ing payment  of  interest  and  attorney's  fees  the  surety  upon  pay- 
ment of  his  principal's  note  may  maintain  his  action  upon  the 
written  obligation  from  the  principal  to  him.^^ 

Where  the  surety  imposes  improper  defenses,  thereby  largely  in- 
creasing the  cost  of  litigation,  he  will  be  charged  with  the  cost  of 
the  suit."^  iSo  the  principal  is  not  liable  for  the  costs  and  expenses 
unnecessarily  incurred  by  the  surety  in  litigation  carried  on  by 
him  in  order  to  get  rid  of  his  liability  or  defeat  the  efforts  of  the 

Nebraska. — Dorrington     v.     Min-  New  Hampshire. — Child  v.  Powder 

nick,  15  Neb.  397,  19  N.  W.  456.  Works,  44  N.  H.  354. 

New   York. — Post   v.   Jackson,   17  Wisconsin. — Whereatt  v.  Ellis,  103 

Johns.  239.  Wis.    348,    79    N.    W.    416;    Earth   v. 

Olilo.— Wilson  V.  Stilwell,  9  Ohio  Graf,  101  Wis.  27,  76  N.  W.  1100. 

St.  470,  51.  Apgar  v.   Wilson,  24  N.   J.   L. 

England. — Holmes    v.    Rhodes,    1  812;   Thompson  v.  Taylor,  72  N.  Y. 

Bos.  &  P.  638.  32. 

50.  Alabama. — Smith  v.  Pitts  (Ala.  52.  Gieseke   v.   Johnson,   115   Ind. 
1910),  52  So.  402.  308,   17  N.  E.   573;    Hays  v.   House- 
Kentucky. —  Maysville    Telephone  wright  (Tex.  Civ.  App.  1911),  133  S. 
Co.  V.  First  National  Bank,  142  Ky.  W.  922. 

578,  134   S.  W.  886,  140  Ky.  51,  130  53.  Carpenter   v.    Minter,    72    Tex. 

S.  W.  820.  370,  12  S.  W.  180. 

Massaelinsetts. — Hayden  v.  Cabot,  54.  Worsham  v.   Stevens,   66   Tex. 

17  Mass.   169.                   •  89,  17  S.  W.  404. 

MissonrL  —  Hearne  v.  Keath,  63  55.    Worthington      v.     Whitefield 

Mo.  84.  (Tex.  Civ.  App.  1911),  142  S.  W.  34. 


56.  May  v.  May,  19  Fla.  373. 


14 


§    184r  SUKETYSniP    AND    GUARANTY.  210 

party  seeking  to  enforce  it."  It  is  incumbent  upon  the  surety 
seeking  to  recover  from  his  principal  costs  and  expense  incurred 
in  litigation,  to  show  that  the  litigation  was  entered  into  in  good 
faith  and  upon  reasonable  grounds,  and  was  a  measure  of  defense 
necessary  to  the  interest  of  himself  and  principal,  and  was  calcu- 
lated so  to  result. ^^ 

An  accommodation  indorser  has  two  remedies;  he  may  sue  on 
the  note  or  sue  for  money  paid.  If  he  sues  on  the  note  he  can  only 
recover  the  amount  with  interest.  If  he  sues  for  money  paid  he 
can  recover  the  amount  with  interest  and  also  the  costs.^^  An  in- 
dorser who  has  been  compelled  to  pay  cannot  recover  costs  against 
the  drawer,  because  he  ought  to  pay  without  suit.***  The  surety 
may  recover  both  the  penalty  and  interest.^^ 

§  184.  Recovery  of  Consequential  Damages. — In  some  cases 
consequential  damages  may  be  recovered.  Thus,  where  the  surety 
can  show  that  by  reason  of  the  non-payment  of  the  debt,  he  has 
suffered  damages  beyond  the  principal  and  interest  which  he  had 
been  compelled  to  pay,  he  is  entitled  to  recover  that  damage  from 
the  principal.*'^  But  this  is  seldom  the  case,  and  the  general  rule 
is  the  surety  cannot  recover  of  the  principal  remote  or  consequen- 
tial damages  arising  out  of  the  contract  of  suretyship.^^  Thus,  a 
surety  who  pays  the  debt  is  not  entitled  to  remuneration  for  losa 
sustained  by  a  forced  or  hasty  sale  of  his  property  to  raise  the 
money,  and  can  only  recover  the  money  paid  with  legal  interest  by 
way  of  damages.  To  provide  against  other  consequences,  the  surety 
must  take  special  indemnity.     Hence,  if  the  surety  is  put  into 

57.  Wynn  v.  Brooke,  5  Rawle  M.  487.  (Compare  Whitehouse  v. 
(Pa.)    106.  Glass,  7  Grant  Ch.  47. 

58.  Redfield  v.  Haight,  27  Conn.  61.  Whereatt  v.  Ellis,  103  Wis. 
31;   Whitworth  v.  Tillman,  40  Miss.  348,  79  N.  W.  416. 

76;    Thompson   v.   Taylor,   72   N.  Y.       See,  also.  United  States  v.  Curtis, 

32;    Cranmer    v.    McSwords,    26    W.  100  U.  S.  119,  25  L.  Ed.  571;  Frink  v. 

Va.  412.  Southern  Express  Co.,  82  Ga.  33,  8 

See,    also.    Holmes    v.    Ward,    24  S.   E.   862;    Burchfield  v.   Haffey,  34 

Barb.  (N.  Y.)  546.  Kan.  42,  7  Pac.  548;  Bank  v.  Smith, 

59.  Burton    v.    Stewart,    62    Barb.  12  Allen  (Mass.)   293. 

(N.  Y.)   194.  62.  Badely    v.    Bank,    34    Ch.    Div. 

60.  Simpson  v.  Griffin,  9  Johns.  (N.    536. 

T.)   131;   Roach  v.  Thompson,  M.  &       63.  Vance   v.   Lancaster,   3   Hayw, 

(Tenn.)    130. 


211  Rights  of  Surety  as  to  Pbincipai..  §   185 

prison  or  his  goods  are  sold  at  a  sacrifice,  this  will  not  be  legal 
grounds  of  suit  for  indemnity,  because  they  may  be  avoided  by  pay- 
ment which  he  agreed  to  make  in  case  the  principal  defaulted.^^ 

§  185.  Payment  of  Usury  by  the  Surety. — A  surety  may,  it  is 
held  in  some  cases,  pay  a  usurious  debt  of  his  principal,  under 
ordinary  circumstances,  and  then  collect  the  whole  amount  from 
his  principal,  unless  the  principal  before  payment  has  notified  him 
not  to  pay  it.^^  But  if  the  usury  makes  the  debt  or  note  void,  and 
the  surety,  knowing  such  to  be  the  case,  pays  the  whole  amount 
without  request  by  the  principal,  the  surety  is  not  entitled  to  relief, 
even  under  a  mortgage  to  secure  him  against  liability  as  such 
surety.^^ 

When  the  defense  of  usury  is  not  available  to  the  principal,  it 
cannot  be  to  the  surety.^^ 

§  186.  What  Amount  the  Surety  Can  Collect  From  the  Prin- 
cipal.— The  surety  can  collect  from  the  principal  only  the  amount 
he  has  paid.  If  the  creditor  remits  the  debt  as  a  gratuity  to  the 
surety,  the  surety  cannot  recover  anything  from  the  principal,  be- 
cause he  has  lost  nothing.  If  the  surety  extinguishes  the  debt  for 
less  than  the  whole  amount  due  he  can  only  recover  what  he  actually 
paid.^^    And  so  if  the  surety  pays  the  debt  in  depreciated  currency, 

64.  Hayden  v.  Cabot,  17  Mass.  169;  Norris,  2  Myl.  &  Cr.  362;  Butcher  v. 
Powell  V.   Smith,   8   Johns.    (N.   Y.)    Chandler,  14  Ves.  567. 

250.  In   an   action   on    a   contractor's 

65.  Ford  v.  Keith,  1  Mass.  139;  bond  to  recover  damages  for  the  fail- 
Kock  V.  Block,  29  Ohio  St.  565;  Jack-  ure  of  a  contractor  to  complete  a 
son  V.  Jackson,  51  Vt.  253.  building,  the  owner  is  entitled  to  be 

Compare    Hargraves   v.    Lewis,    3  crdited  with  sums  paid  out  in  pur- 

Ga.  162;  Jones  v.  Joyner,  8  Ga.  562;  chasing     finishing     items,     in     the 

Lueking  v.  Gegg,  12  Bush.  (Ky.)  298;  amounts  fixed  in  the  contract  there- 

Thurston  v.  Prentiss,  1  Mich.  193.  for;  also  for  such  items  as  sweeping 

66.  Roe  V.  Kiser,  62  Ark.  92,  34  S.  out  and  repairing,  where  the  con- 
W.  534.  tract  called  for   leaving   the  house 

67.  Freese  v.  Brownell,  35  N.  J.  L.  "  broom  clean,"  although  no  archi- 
285;  Pugh  v.  Gonover,  11  W.  Va.  tect's  certicate  in  relation  thereto 
523.  was  furnished;  also  the  amount  for 

68.  Delaware,  etc.,  R.  R.  Co.  v.  which  liens  were  filed,  admitted  by 
Iron  Co.,  38  N.  J.  Eq.  151;  Snyder  v.  the  contractor  to  be  correct.  Jenk- 
Blair,  33  N.  J.  Eq.  208;  Bonney  v.  ins  v.  American  Surety  Co.,  45  Wash. 
Seely,  2  Wend.  (N.  Y.)  481;  Reed  v.  573,  88  Pao.  1112. 


§  187 


Suretyship  and  Guaranty. 


211 


he  can  only  recover  from  the  principal  the  market  value  of  the  cur- 
rency at  the  time  payment  v^^as  made.^* 

The  contract  between  the  principal  and  surety  is  for  indemnity 
only,  and  therefore  if  the  surety  discharges  the  obligation  for  a 
less  sum  than  its  full  amount  he  can  only  claim  against  the  prin- 
cipal the  sum  so  paid.^**  But  an  accommodation  indorser  has  the 
same  right  to  purchase  negotiable  paper  on  which  he  is  liable  with 
any  other  person,  and  so  when  he  becomes  purchaser  of  such  paper, 
he  is  entitled  to  recover  the  full  amount  due  from  the  maker,  with- 
out regard  to  what  he  paid  for  it.''^ 

§  187.  Joint  Suit  by  Sureties. — Sureties  cannot  maintain  a 
joint  action  against  their  principal  unless  the  payment  is  made 
from  a  joint  fund.  When  each  surety  furnishes  money  to  pay 
the  debt  of  the  principal,  the  action  to  recover  the  same  must  be 
separate,  and  not  joint. '^  At  common  law  an  action  in  assumpsit 
by  sureties  in  exoneration  of  their  loss  where  they  had  paid  the 
debt  of  their  principal  was  ordinarily  several  and  not  joint.  When, 
however,  the  payment  was  joint  or  was  made  out  of  a  joint  fund, 
the  sureties  were  permitted  to  join  in  a  suit  for  reimbursements.^^ 


In  Texas  it  is  decided  that  under 
the  statutes  of  that  State  an  in- 
dorser of  a  note  who  is  given  the 
remedies  extended  to  sureties  is  en- 
titled, where  he  is  a  party,  and  by 
cross-bill  asks  for  it,  to  a  judgment 
in  their  favor  against  the  principal 
for  such  amounts  as  they  may  be 
compelled  to  pay  out  by  reason  of 
having  indorsed  the  notes  sued  on. 
Blake  v.  Vesey  (Tex.  Civ.  App.  1912), 
143  S.  W.  220. 

69.  Butler  v.  Butler,  8  W.  Va.  674; 
Matthews  v.  Hall,  21  W.  Va.  510. 

70.  California. — Waldrip  v.  Black, 
74  Cal.  409,  16  Pac.  226. 

Indiana. — Gieseke  v.  Johnson,  115 
Ind.  308,  17  N.  E.  573. 

Kentucky. — Owings  v.  Owings,  3 
J.  J.  Marsh,  590. 

Nebraska. — Eaton  v.  Lambert,  1 
Neb.  339. 


Texas. — Carpenter  v.  Minter,  72 
Tex.  370,  12  S.  W.  180. 

Virginia, — Hendrick  v.  Forney,  22 
Graft.  748. 

71.  Fowler  v.  Strickland,  107 
Mass.  552. 

72.  Illinois. — Whitbeck  v.  Ramsey, 
74   111.  App.   524. 

Maine. — Lombard  v.  Cobb,  14  Me. 
222. 

Massaclinsetts. — Appleton  v.  Bas- 
com,  3  Met.  169. 

New  Hampshire. — Pearson  v.  Par- 
ker, 3  N.  H.  366. 

Vermont. — Thomas  v.  Carter,  63 
Vt.  609,  22  Atl.  720. 

England. — Osborne  v.  Harper,  5 
East  225. 

73.  Hudson  v.  Aman  (N.  C.  1912). 
74  S.  E.  97. 


213  'Rights  of  Surety  as  to  Principal.  §   188 

So  where  several  parties,  each  of  whom  is  responsible  for  an  en- 
tire sum  due  from  another,  join  in  making  the  payment  of  that 
sum  by  a  contribution  agreed  on  among  themselves  for  that  pur- 
pose, they  may  join  in  one  action  to  recover  it  from  the  person 
for  whose  benefit  the  payment  has  been  made.^*  Where  there  is 
no  community  of  interest  in  the  money  paid,  a  joint  action  can- 
not be  maintained.^"  But  the  rule  is  otherwise  where  there  is  a 
community  of  interest  in  the  fund  appropriated  to  the  payment 
of  the  debt.  Thus,  where  the  sureties  deposit  a  sum  with  the 
creditor  to  their  joint  order,  to  be  held  as  collateral  security  for 
their  joint  liability,  and  from  which  such  liability  is  finally  dis- 
charged, that  is  a  joint  fund,  although  made  up  in  the  first  in- 
stance from  individual  deposits  by  several  sureties.^®  In  general, 
sureties  may  sue  jointly  when  they  have  satisfied  the  debt  by 
giving  their  joint  note ;"  or  if  they  pay  from  a  joint  fund  which 
they  have  provided  for  that  purpose  f^  or  if  they  have  paid  a 
joint  judgment  in  equal  shares.'^  But  where  each  has  paid  his 
share,  the  right  to  recover  is  several,  and  the  sureties  must  en- 
force their  rights  by  separate  suits.^^ 

§  i88.  Payment  of  Judgment  by  Surety. — When  the  surety 
has  paid  the  judgment  rendered  against  him  individually,  or 
jointly  against  him  and  his  principal,  he  can  recover  from  the 
principal  the  amount  paid  to  discharge  the  debt,  and  this  is  so 
though  the  surety  did  not  well  defend  the  suit.^^    And  this  is  the 

74.  Clapp  V.  Rice,  15  Gray  (Mass.)  79.  Snider  v.  Greathouse,  16  Ark. 
&57.  72;    Rizer   v.    Callen,    27    Kan.    339; 

75.  Doremus  v.  Selden,  19  Johns.  Clapp  v.  Rice,  15  Gray  (Mass.)  557; 
(N.  Y.)  213.  Fletcher  v.  Jackson,  23  Vt.  581. 

76.  Thomas  v.  Carter,  63  Vt.  609,  80.  Illinois.— Whitbeck  v.  Ramsey, 
22  Atl.  720.  74  111.  App.  524. 

See,   also,   Ross   v.   Allen,   67   111.  Missouri. — Sevier    v.     Roddie,     51 

317;  Gould  v.  Gould,  8  Cow.   (N.  Y.)  Mo.  580. 

168.  New  York. — Doremus  v.  Selden,  19 

77.  Ross    V.    Allen,    67    111.    317;  Johns.  213. 

Rizer  v.  Callen,  27  Kan.  339;   Doo-  Pennsylvania. — Boggs  v.  Curtin,  10 

little  V.  Dwight,  2  Met.  (Mass.)   561.  Serg.  &  R.  211. 

78.  Whitbeck  v.  Ramsiey,  74  111.  Vermont, — Prescott  v.  Newell,  39 
App.  524 ;  Jewett  v.  Comforth,  3  Me.  Vt.  82. 

107;  Thomas  v.  Carter,  63  Vt.  609,  22  81.  Doran  v.  Davis,  43  Iowa  86; 
Atl.  720.  Rice  v.  Rice,  14  B.  Mon.  (Ky.)  417. 


§  189  Suretyship  and  Guaranty.  214: 

law  though  the  surety  lets  the  judgment  go  by  default,  he  not 
knowing  of  any  defense  to  it.**^ 

It  behooves  the  principal,  if  he  has  any  defense,  to  put  it  up 
at  the  trial,  whether  the  action  is  brought  against  him  or  the 
surety  separately,  or  against  both.  If  he  does  not  he  waives  his 
rights  in  the  matter,  and  cannot  set  up  such  defense  in  a  suit 
against  him  by  the  surety  for  reimbursement.^^  And  in  general, 
the  surety,  upon  paying  the  judgment  against  him  or  against 
both,  may  recover  from  the  principal.** 

In  such  a  case,  however,  as  he  only  succeeds  to  such  rights  as 
the  judgment  creditor  had  his  right  to  bring  an  action  against 
his  principal  is  limited  to  the  period  prescribed  for  bringing  an 
action  on  the  judgment.^^ 


§  189.  Right  to  Take  Indemnity  From  the  Principal. — The 
principal  may  indemnify  the  surety  against  loss,  and  the  contract 
will  be  valid.^^  The  contingent  liability  of  the  surety  and  the  prom- 
ise to  pay  if  the  principal  does  not  is  a  sufficient  consideration  for 
the  indemnity  contract. ^^  Justice  is  promoted  by  permitting  a 
surety  to  take  from  his  principal  some  obligation  upon  which  he 
may  acquire  a  lien  upon  the  property  of  the  principal  to  provide 
■security  for  his  indemnity  in  case  of  need  before  he  has  actually 
•been  compelled  to  pay  the  debt.^^  But  such  security  can  only  bo 
applied  where  the  surety  has  either  paid  the  debt,  or  has  become 

82.  Stinson  v.  Brennan,  Cheves  Pac.  258;  Essex  Chosen  Freeholders 
(S.  C.)  15.  V.  Lindsley,  41  N.  J.  Eq.  189. 

A  judgment  by  consent  against  a  Under  a  statute  permitting  surety 

surety  is  only  prima  facie  evidence  companies  to  stipulate  for  indemnity 

of  the  extent  of  the  principal's  lia-  from  their  principals  it  is  held  that 

bility  to  him.    Cazort  &  McGehee  Co.  such  a  company  has  no  right  to  de- 

V.  Dunbar  (Ark.  1909),  121  S.  W.  270.  mand  indemnity,  the  contract  must 

83.  Konitsky  v.  Meyer,  49  N.  Y.  contain  a  provision  therefor.  United 
571;  Hare  v.  Grant,  77  N.  C.  203.  States    Fidelity    &    Guaranty    Co.   v. 

84.  Chandler  v.  Higgins,  109  111.  Paxton,  142  Ky.  361,  134  S.  W.  481, 
602;    Konitsky    v.    Meyer,    49   N.    Y.  decided  under  Ky.  St.,  §  723. 

571;   Kendrick  v.  Rice,  16  Tex.  254.  87.  Haseltine   v.   Guild,    11    N.    H. 

85.  Cathcart  v.  Bryant,  28  Wash.  390. 

31,  68  Pac.  171.  88.  Little  v.  Little,  13  Pick.  (Mass.) 

8(5.  Kassing   v.    Bank,    74    111.    16;  426;  Grimes  v.  Sherman,  25  Neb.  843, 

Tudor  V.  DeLong,  18  Mont.  499,  46  41  N.  W.  814;   Kramer  v.  Bank,  15 

Ohio  283. 


215  Rights  of  Surety  as  to  Principal.  §  190 

immediately  liable  for  its  payment;*^  and  the  surety  may  be  com- 
pelled to  apply  the  collaterals  or  security  in  his  hands  to  the  pay- 
ment of  the  debt.^'^ 

He  has,  however,  no  right  to  apply  securities  of  his  principal 
•except  where  he  has  become  liable  on  the  bond  for  a  breach  thereof 
by  the  principal.^^  And  in  case  of  the  insolvency  of  the  surety 
and  a  failure  by  him  to  pay  the  obligation  of  his  principal  the 
latter  is,  in  an  action  by  him  in  behalf  of  his  creditor  entitled 
to  a  judgment  for  the  value  of  the  property  delivered.^^ 

At  common  law  an  insolvent  debtor  has  a  right  to  sell  or  trans- 
fer the  whole  or  any  portion  of  his  property  to  one  or  more  of  hia 
creditors  in  payment  of  or  to  secure  his  debt,  when  that  is  his 
honest  purpose,  although  the  effect  of  the  sale  or  transfer  is  to 
place  his  property  beyond  the  reach  of  his  other  creditors  and 
render  their  debts  uncollectible.®^ 

The  taking  of  collateral  security  by  the  surety  does  not  relieve 
the  principal  from  his  primary  liability  on  his  undertaking.®^ 

§  190.  When  the  Principal  is  Not  Liable. — In  order  to  make 
the  principal  reimburse  the  surety  who  has  paid  the  debt,  the 
principal  must  be  liable  for  the  debt  paid,  except  in  case  of  dis- 
ability.®^ For  the  right  of  the  surety  to  recover  in  a  suit  against 
the  principal  for  paying  his  debt  depends  on  the  question  whether 
the  surety  is  legally  bound  to  pay  it.  The  voluntary  payment  by 
the  surety,  although  made  under  a  mistaken  apprehension  as  to 
his  legal  liability,  will  not  make  the  principal  liable.  The  surety's 
recovery  can  only  arise  from  payment  of  money  which  he  was 
legally  bound  to  pay  according  to  the  original  contract  of  surety- 
ship.®^   If  the  surety  knows  of  facts  which  will  discharge  him  or 

89.  Constant  v.  Matteson,  22  111.  Y.  117,  51  N.  E.  268;  Dodge  v.  Mc- 
546,  Keehnie,  156  N.  Y.  514,  43  N.  E.  532. 

90.  McKnight  v.  Bradley,  10  Rich.  9-J.  Leary  v.  Murray,  178  Fed.  209, 
Eq.    (S.   C.)    557.  101  C.  C.  A.  529. 

As  to  subrogation  of  creditor  to  95.  Sponhaur   v.    Malloy,    21    Ind. 

surety's  securities,  see  §  151  herein.  App.  287,  52  N.  E.  245. 

91.  Nourse  v.  Weitz,  120  Iowa  708,  That  surety  must  be  under  a  legal 
95  N.  W.  251.  obligation  to  pay,  see  §  177  herein. 

92.  Kerr  v.  Hough,  22  Ky.  Law  96.  Bancroft  v.  Abbott,  3  Allea 
Rep.  1693,  61  S.  W.  262.  (Mass.)  524. 

98.  Thompkins  v.   Hunter,   149  N. 


§  191  Suretyship  and  Guaranty.  21G 

his  principal,  and  pays  the  creditor,  then  he  cannot  recover  from 
the  principal."  If  the  surety,  to  shield  himself  against  liability 
in  another  transaction,  procures  his  debtor  to  surrender  to  him 
a  debt  of  the  principal,  then  he  cannot  recover  from  his  principal.^* 
And  so  where  the  transaction  is  contrary  to  lavs^,  and  therefore 
the  principal  is  not  liable,  if  the  surety  pays  the  debt  he  cannot 
recover  from  the  principal.^*  But  where  the  surety  has  been  com- 
pelled to  pay  the  debt  of  his  principal,  without  any  fraud  or 
negligence  on  his  part,  though  the  obligation  is  without  consider- 
ation, he  can  recover.-*^  If  he  pays  a  debt  barred  by  the  statute  of 
limitations,  then  he  cannot  recover  from  the  principal,^  because 
the  principal  is  under  no  legal  obligation  to  the  creditor  to  pay 
the  debt  so  barred.* 

§  19 1.  Voluntary  Payment  by  Surety. — A  surety  cannot  re- 
cover money  voluntarily  paid  by  him  for  a  principal,  for  the  rea- 
son that  a  surety  cannot  pay  a  debt  for  which  his  principal  is  not 
liable,  and  then  sue  the  principal  for  reimbursement.*  When  one 
is  not  legally  bound  to  pay  the  debt  of  another,  if  he  pays  it,  he 
is  a  mere  volunteer,  and  cannot,  therefore,  claim  reimbursement 
from  the  debtor.^  The  party  in  paying  the  creditor  must  act  un- 
der compulsion  to  save  himself  from  loss,  in  order  to  demand  re- 
imbursement.® 

So  the  promise  to  pay  the  pre-existing  debt  of  another  person 
to  his  creditor,  requires  a  new  consideration  to  support  it,  and  if 
this  new  consideration  is  not  given,  the  creditor  cannot  enforce 
it  against  the  promisor,  or  surety.  Thus,  where  a  widow  gives 
a  note  for  a  pre-existing  debt  of  her  deceased  husband,  whose  es- 
tate is  insolvent,  she  is,  in  many  States,  only  a  surety,  and  cannot 

97.  Noble  v.  Blount.  77  Mo.   235;  See  §  173. 

Russell  V.  Failor,  1  Ohio  St.  327.  3.  Elder  v.  Elder,  43  Kan.  514,  23 

88.  McCory  v.  Parks,  18  Ohio  St.  Pac.  600. 

1.  4.  Opp  V.  Ward,  125  Ind.  241,  24  N. 

99.  Davis  v.  Stokes  County,  74  N.  E.  974. 

C.  374,  5.  Beaver  v.  Slanker,  94  111.  175. 

1.  Frith  V.  Sprague,  14  Mass.  455.  6.  Aetna  Life  Ins.  Co.  v.  Middle- 

2.  Stone  v.  Hammell,  83  Cal.  547,  port,  124  U.  S.  534,  8  S.  Ct.  625,  31 
23  Pac.  703;  Halshutt  v.  Pegram,  21  L.  Ed.  537;  Hoover  v.  Epler,  52  Pa. 
La.  Ann.  722;   Elliott  v.  Nichols,  7  St.  522. 

Gill  (Md.)   85. 


^17  'Rights  of  Surety  as  to  Principal.  §  192 

be  compelled  to  pay  the  debt,  or  note.'  And  she  cannot  be  con- 
sidered liable  on  the  new  contract,  whether  she  be  considered  a 
surety  or  a  mere  volunteer.^ 

But  where  a  judgment  on  an  appeal  bond  has  been  affirmed  by 
the  supreme  court  of  a  territory  and  the  surety  is  notified  by  the 
governor  of  the  territory  that  its  right  to  do  business  within  the 
territory  will  be  forfeited  unless  it  pays  the  judgment,  a  pay- 
ment by  it  of  such  judgment  will  not  be  regarded  as  voluntary, 
but  rather  as  justified  and  having  paid  the  same  it  will  be  en- 
titled to  reimbursement  from  the  principal.  And  such  right  is 
not  affected  by  the  taking  of  security  from  the  judgment  creditor 
as  by  so  doing  it  was  benefitting  the  principal  by  acquiring  se- 
curity to  which  he  could  be  subrogated  in  the  event  that  the  judg- 
ment should  be  reversed.^ 

§  192.  Statute  of  Limitations  as  Between  Surety  and  Prin- 
cipal.— The  statute  of  limitations  may  run  in  favor  of  the  prin- 
cipal so  as  to  bar  the  surety  from  recovering  from  the  principal. 
The  statute  begins  to  run,  in  favor  of  the  principal,  from  the 
time  when  the  surety  has  paid  the  principal's  debt.  There  is  an 
implied  promise  on  the  part  of  the  principal  to  indemnify  the 
surety  and  repay  him  all  money  that  he  may  be  compelled  to  pay 
to  the  creditor,  in  consequence  of  his  liability  as  surety ;  and  un- 
til the  surety  makes  payment,  there  is  no  breach  of  this  implied 
promise,  and  hence  no  cause  of  action  against  the  principal  for 
such  payment  arises  until  the  payment  is  made.^"  And  so  the 
statute  begins  to  run  in  favor  of  the  principal  at  the  time  the 
property  of  the  surety  is  sold  to  pay  the  debt." 

Where  the  surety  has  paid  a  part,  and  thereafter  the  principal 
pays  the  balance,  the  statute  begins  to  run  from  the  time  of  the 
principal's  payment,  and  not  from  the  partial  payment  by  the 
surety,  because  until  the  last  payment  by  the  principal,  it  could 
not  be  ascertained  how  much  the  surety  would  be  obliged  to  pay." 

7.  Hetherington  v.  Hixon,  46  Ala.  10.  Thayer  v.  Daniels,  110  Mass. 
297;  Sponhaur  v.  Malloy,  21  Ind.  345;  Williams  v.  Williams,  5  Ohio  444. 
App.  287,  52  N.  E.  245;  Parsons  v.  11.  Wesley  Church  v.  Moore,  10 
Nields,  137  Pa.  St.  385,  21  Atl.  1016.  Pa.  St.  273. 

8.  Williams  v.  Nichols,  10  Gray  12.  Davies  v.  Humphreys,  6  Mees. 
(Mass.)   83.  &    W.    153.      Compare    Williams    v. 

9.  United  States  Fidelity  &  Guar-  Williams,  5  Ohio  444. 
anty   Co.   v.   Sandoval    (U.   S.   S.   C. 

1912),  32  Sup.  Ct.  298. 


§   192  Suretyship  and  Guaranty.  218 

Where  a  surety  gives  his  own  note  in  payment  of  his  principal's 
note,  limitations  upon  his  righ-t  to  recover  from  his  principal  is 
held  to  commence  to  run  from  the  date  that  the  payment  is  so 
made  and  not  from  the  time  he  pays  his  own  note.^^ 

In  some  States  this  matter  is  controlled  by  statute.  Thus,  in 
Missouri,  if  the  surety  pays  his  principal's  debt,  he  must  present 
his  claim  for  reimbursement  to  the  Probate  Court,  in  case  of  the 
death  of  the  principal,  within  the  time  limited  by  statute,  or  lose 
his  right  to  recover/*  In  Illinois,  where  the  state  of  the  dece- 
dent's estate  is  sufficient  to  pay  all  claims,  a  failure  of  the  holder 
of  a  note  against  the  deceased  principal  to  have  it  probated  will 
release  the  surety  as  to  the  whole  debt,  and  where  the  estate  is 
sufficient  to  pay  a  part,  then  the  surety  is  released  pro  tanto}^ 
However,  the  claim  is  not  barred,  but  a  right  to  claim  a  distribu- 
tive share  out  of  the  property  inventoried  is  barred.  The  credi- 
tor still  has  the  right  to  satisfy  his  claim  out  of  subsequently 
discovered  estate  not  inventoried.^^  And  as  the  surety  has  the 
right  to  be  subrogated  to  the  rights  of  the  creditor  when  he  is  com- 
pelled to  pay  the  principal's  debt,  he  would  have  no  greater  rights 
than  the  creditor  in  probating  the  claim. 

Under  a  Kentucky  statute  it  is  provided  that  the  period  during 
which  a  surety  shall  hinder  or  obstruct  his  being  sued  shall  not  be 
included  in  computing  the  period  of  limitation." 

The  surety  having  paid  the  debt  which  the  principal  ought  to 
have  paid,  the  law  implies  a  promise  on  the  part  of  the  principal 
to  reimburse  the  surety,  and  the  latter  may  maintain  an  action  on 
implied  promise  as  for  money  paid  for  the  use  of  the  principal.^* 
And  the  rule  as  to  the  running  of  the  statute  of  limitations  in  bring- 
ing such  case  is  the  same  that  applies  generally  to  other  actions 
upon  implied  and  unwritten  contracts.^^ 


13.  Yndo  V.  Rivas   (Tex  Civ.  App.  18.  Poe  v.  Dixon.  60  Ohio  St.  124, 
1911),  142  S.  W.  920.  54  N.  E.  86. 

14.  Bauer  v.  Gray,  18  Mo.  App.  164.  See  §  178  herein. 

15.  Waughop   V.   Bartlett,   165   111.  19.  Thayer  v.   Daniels,   110  Mass. 
124,  46  N.  E.  197.  345;  Sherrod  v.  Woodward,  4  Dev.  L. 

16.  Snydaeker    v.    Swan    Land    &  (N.  C.)   360;    Poe  v.  Dixon,  60  Ohio 
Cattle  Co.,  154  111.  220,  40  N.  E.  466.  St.  124,  54  N.  E.  86;  Zuellig  v.  Hem- 

17.  Exchange  Bank  v.  Thomas,  25  erlie,  60  Ohio  St.  27,  53  N.  E.  447. 
Ky.  Law  Rep.  228,  74  S.  W.  1086,  75 

S.  W.  283;  Ky.  St.,  §  2552. 


-219  Rights  of  Surety  as  to  Principal.  §  195 

§  193.  Relief  of  Surety  in  Equity. — Equitable  relief  in  behalf 
of  the  surety  is  one  of  original  jurisdiction  in  a  court  of  chancery.^'* 
And  though  the  liability  of  a  surety  is  governed  by  the  same  prin- 
ciples at  law  as  in  equity,  a  court  of  equity  will  not  send  a  party 
suing  there  to  a  court  of  law  for  a  discharge  or  relief ;  but  will  ex- 
tend the  same  relief  and  exercise  the  same  powers  in  behalf  of 
sureties  that  can  be  exercised  by  law.^^ 

After  the  debt  is  due  equity  may  compel  the  principal  to  pay  the 
obligation,^^  or  may  compel  the  creditor  or  obligee  to  satisfy  his 
demands  out  of  the  estate  of  the  principal  debtor,^^  and,  after  the 
surety  has  paid  the  debt,  set  aside  a  fraudulent  conveyance  of  the 
principal.^* 

20.  New  York  Bank  Note  Co.  v.  New  Jersey. — Philadelphia,  etc.,  R, 
Kerr,  77  111.  App.  53.  R.  Co.  v.  Little,  41  N.  J.  Eq.  519. 

21.  Viele  v.  Hoag,  24  Vt.  46;  Eyre  PenusylYania. — Ardesco  Oil  Co.  v. 
V.  Everett,  3  Hare  567.  Oil  Co.,  66  Pa.  St.  375. 

22.  West  Hunterville  Cotton  Mills  Wisconsin.— McMillen  v.  Mason,  71 
Co.  V.  Alter  (Ala.  1910),  51  So.  338;  Wis.  405,  37  N.  W.  253. 

Cooper    V.    National    Fertilizer    Co.,       24.  Hatfield  v.  Merod,  82  HI.  113; 

132  Ga.  529,  64  S.  E.  650.  Choteau  v.  Jones,  11  111.  300;  Strong 

23.  Illinois.— Moore  v.  Topliff,  107  v.  Taylor,  79  Ind.  208;  Bragg  v.  Pat- 
Ill.  241.  terson,  85  Va.  233. 

Indiana. — Smith    v.    Harbin,    124 
Ind.  434,  24  N.  E.  1051. 


§  194  Suretyship  and  Guaranty.  220 


CHAPTER   VIII. 

RIGHTS   OF   CO-SURETIES. 

Section  194.     Right  to  Contribution. 

194a.  Right  to  Contribution  Continued. 

194b.  Right  to  Contribution  —  Not  Subject  to  Judicial  Control. 
194c.  Right  to  Contribution  —  Accommodation  and  Compensated 
Sureties. 

195.  Payment  by  Note. 

196.  Enforcement  at  Law. 

197.  Enforcement  in  Equity. 

198.  The  Co-surety  Cannot  Speculate  to  the  Injury  of  His  Co- 

surities. 

199.  Surety  of  a  Surety. 

200.  Obligation  to  Contribute. 

201.  Liability  of  Surety's  Estate. 

202.  Remedy  Against  Co-surety  Before  Payment. 

203.  Co-sureties  Under  Different  Instruments. 

204.  The  Obligation  Must  Be  the  Same. 

205.  Co-sureties  Limiting  Their  Liability  in  Different  Amounts. 

206.  Accommodation  Indorsers. 

207.  Sureties  in  Legal  Proceedings. 

208.  Indemnity  to  One  Surety. 

209.  Liability  to  Contribute  on  Successive  Bonds. 

210.  Admissibility  of  Parol  Evidence  to  Show  that  Parties  on  a 

Promissory  Note  are  Co-sureties. 

211.  Statute  of  Limitations. 

212.  Bankruptcy  of  Co-surety. 

Sec.  194.  Right  to  Contribution. — When  one  co-surety  pays 
the  debt  after  the  principal  has  defaulted,  he  is  entitled  to  con- 
tribution from  the  other  co-sureties.  The  obligation  of  contribu- 
tion is  not  founded  upon  contract,  but  on  the  principle  of  equity. 
This  principle  is  accepted  by  all  parties  under  circumstances  when 
it  can  be  applied,  and  upon  this  ground  courts  have  also  taken 
jurisdiction  to  enforce  contribution.^     So  in  a  recent  case  in  Wis- 

1.  Uuiled     States. — McDonald     v.  Illinois. — Drummond  v.  Yager,  10 

McGruder,  3  Pet.  470,  7  L.  Ed.  744.  111.  App.  380;   Paul  v.  Berry,  78  111. 

Colorado. — McAllister    v.    Irwin's  158. 

Estate,  31  Colo.  253,  73  Pac.  47.  Kentucky. — Sanders    v.    Herndon, 

Georgia.— McLin    v.    Harvey    (Ga.  29  Ky.  Law  Rep.  322,  93  S.  W.  14, 

App.   1910),   69   S.  E.   123.  29. 


221 


Rights  of  Co-sdeeties. 


§     V.i4: 


consin  it  is  said  that  such  right  anciently  originated  in  equity  but 
now  rests  upon  legal  as  well  as  equitable  obligation  and  is  enforce- 
able at  law  or  in  equity  according  to  circumstances.^  The  equity 
springs  out  of  the  proposition  that  where  two  or  more  sureties 
stand  in  the  same  relation  to  a  principal,  they  are  entitled  equally 
to  all  the  benefits  and  must  bear  equally  all  the  burdens  of  the  po- 
sition. They  must  occupy  the  same  position  in  respect  to  the  prin- 
cipal, unless  equities  among  themselves  give  an  advantage  to  one 
over  the  others.^ 

And  this  liability  to  contribution  exists  although  the  sureties  are 
ig-norant  of  each  other's  engagement.^    .So  it  is  said  to  be  an  ac- 


Louisiana. — See  Bruce  Co.  v.  Lam- 
bour,  123  La.  969,  49  So.  659. 

Michigan. — Bronson  v.  Marsh,  131 
Mich.  35,  90  N.  W.  686,  3  Det.  Leg. 
N.  213. 

Missouri. — Wilson  v.  Kieffer,  141 
Mo.  Aflpp.  137,  122  S.  W.  1149. 

Nevada. — Alderson  v.  Menes,  16 
Nev.  298. 

New  Jersey. — Paul  v.  Kaighn,  29 
N.  J.  L.  480. 

New  York. — Norton  v.  Coons,  6  N. 
Y.  33. 

Nortli  Carolina, — Board  of  Com- 
missioners of  Davidson  Co.  v.  Dor- 
eett,  151  N.  C.  307,  66  S.  E.  132. 

Obio. — Robinson  v.  Boyd,  60  Ohio 
St.  57,  53  N.  E.  494;  Nielson  v.  Fry, 
16  Ohio  St.  552. 

Pennsylvania. — Patterson  v.  Pat- 
terson, 23  Pa.  St.  464. 

Texas. — Smart  v.  Panther,  42  Tex. 
Civ.  App.  262,  95  S.  W.  679. 

England. — Ellesmere  Brewing  Co. 
V.  Cooper  (1896),  12  B.  75;  Cray- 
thorne  v.  Swinburne,  14  Ves.  169. 

Petition  held  sufficient  in  action 
for  contribution.  See  Train  v. 
Emerson  (Ga.  S.  C.  1912),  74  S.  E. 
241. 

2.  Estate  of  Koch,  148  Wis.  548, 
134  N.  W.  663.  Judge  Marshall  said 
in  this  case:     "From  the  very  na- 


ture of  the  matter  the  whole  subject 
of  contribution  was  at  first  and  for 
a  long  time  dealt  with  solely  in 
equity,  taking,  however,  more  and 
more,  with  the  lapse  of  time,  the 
form  of  a  definite  judicial  code,  ap- 
propriate to  a  proper  standard,  in 
moral  conception,  of  business 
ethics.  Those  rules,  being  we^l  es- 
tablished and  universally  applied 
with  quite  as  much  certainty  as 
legal  rules,  strictly  so  called,  or 
rules  defendable  upon  written  law, 
came  to  be  regarded  as  automati- 
ically  written  into  every  contract  of 
guaranty,  nothing  appearing  effic- 
iently to  the  contrary,  and  enforce- 
able at  law  as  well  as  in  equity. 
*  *  *  While  it  is  an  equity  the 
right  to  the  equity  is  legal  as  well 
as  equitable,  because  the  parties 
are  presumed  to  have  agreed  that 
the  right  shall  exist,  and  so  legal 
as  well  as  equitable  remedies  are 
available  to  redress  its  violation." 

3.  Wells  V.  Miller,  66  N.  Y.  255; 
Barry  v.  Ransom,  2  N.  Y.  462;  Elles- 
mere Brewing  Co.  v.  Cooper  (1896), 
1  Q.  B.  75. 

4.  Connecticut. — Monson  v.  Drake- 
ley,  40  Conn.  552. 

Massachusetts.— Chaffee  v.  Jones, 


§    194a  ISURETYSHIP  AND  GuAEANTY.  222 

cepted  principle  that  co-sureties  of  the  same  obligation,  even  though 
ignorant  of  the  existence  of  each  other,  who  occupy  the  same  posi- 
tion in  respect  to  the  prncipal  and  are  without  equities  as  between 
themselves,  giving  an  advantage  to  one  over  the  other,  are  entitled 
to  contribution  from  each  other.^ 

The  jurisdiction  of  all  law  courts  is  based  upon  the  doctrine 
that  the  equitable  principle  has  been  so  long  and  so  generally  ac- 
knowledged and  enforced  that  persons  in  placing  themselves  under 
circumstances  to  which  contribution  applies,  may  be  supposed  to 
act  under  the  dominion  of  contract  impled  from  the  universality 
of  that  principle.® 

§  1943.  Right  to  Contribution  Continued. — The  obligation  of 
co-sureties,  though  several,  is  not  collateral.  It  is  for  the  same 
thing.  They  have  a  right  of  indemnity  against  their  principal,  and 
there  is  generally  such  mutuality  between  them  as  to  render  the 
right  a  duty  of  contribution.^  But  a  voluntary  payment  of  the 
debt  by  one  of  the  sureties  does  not  give  the  right  of  contribution.^ 
Thus,  one  of  the  sureties  who  pays  an  obligation  of,  or  a  judgment 
against  his  principal  which  is  not  legally  enforceable,  cannot  re- 
cover contribution.*  But  where  a  surety  pays  a  note  in  good  faith, 
not  knowing  of  a  defense,  he  is  entitled  to  contribution.^'*  If  the 
surety  is  legally  bound,  and  a  demand  is  made  by  the  creditor,  and 
he  pays  without  a  suit,  he  can  enforce  contribution.^^     And  so  a 

19   Pick.   260;    Warner  v.   Morrison,  (Ky.)   401;   Pile  v.  McCoy,  99  Tenn. 

3  Allen  566.  367,  41  S.  W.  1052. 

>'ew    Hampshire. — Whitehouse    v.  7.  Monson  v.  Drakeley,  40  Conn. 

Hanson,  42  N.  H.  9.  552;  Covey  v.  Bostwick,  20  Ohio  St. 

New  York.— Wells  v.  Miller,  66  N.  337. 

Y.  255;  Norton  v.  Coons',  6  N.  Y.  33.  8.  Halsey  v.  Murray,  112  Ala.  185, 

Ohio.— Robinson  v.  Boyd,  60  Ohio  20  So.  575;  Curtis  v.  Parks,  55  Cal. 

St.  57,  53  N.  E.  494.  106;   Skillin  v.  Merrill,  16  Mass.  20. 

Oregon. — Durbin     v.     Kuney,     19  As    to    voluntary    payments    see 

Oreg.  74,  23   Pac.  661.  §  191  herein. 

Virginia.— Stovall  v.  Bank,  78  Va.  9.  Smith  v.  Staples,  40  Conn.  90; 

188.  McLin  v.  Harvey  (Ga.  App.  1910),  69 

Enghmd.— Craythorne     v.     Swin-  S.  E.  123. 

burne,  14  Ves.  160.  10.  Hichbone   v.   Fletcher,   66   Me. 

6.  National  Surety  Co.  v.  Di  Mar-  209;    Warner   v.    Morrison,   3   Allen 

Bico,  55  Misc.  R.  (N.  Y.)  302,  105  N.  (Mass.)   566. 

Y.  Supp.  272.  11.  Harden  v.  Carroll.  90  Wis.  350, 

6.  Lansdale  v.  Cox,  7  T.  B.  Mon.  63  N.  W.  275. 


223  Rights  of  Co-sureties.  §  104a 

surety  has  a  right  ta  contribution,  if  he  pays  a  judgment  before 
execution  is  issued  ;^^  or  if  the  debt  is  due  and  collectible  ;'"  and  so  if 
suit  is  brought  and  he  pays  before  trial ;"  and  he  may  pay  a  legal 
debt  in  advance  and  then  have  contribution  at  maturity  ;^*^  also,  if 
he  pays  an  amount  settled  by  arbitration.^^  In  Louisiana  the  surety 
must  wait  until  judgment  is  rendered.^^  If  a  note  has  been  altered 
after  the  name  of  tlie  surety  paying  it,  this  does  not  prevent  him 
from  recovering  contribution,  because  he  has  a  right  to  ratify  the 
note  after  such  alteration.^^  And  it  is  held  that  it  is  no  defense 
that  the  original  note  was  void  for  want  of  consideration.  If  one 
of  the  sureties  pays  it  he  can  obtain  contribution.^^ 

A  judgment  against  one  surety  does  not  conclude  his  co-surety 
from  showing  there  was  no  liability,^^  unless  he  was  party  to  the 
suit,^°  or  had  notice.  In  the  latter  case  it  is  decided  that  a  judg- 
ment against  a  surety  obtained  without  fraud  or  collusion  in  an 
action  of  which  the  principal  or  any  co-surety  had  notice  is  con- 
clusive in  favor  of  the  surety  in  an  action  against  the  principal  or 
the  co-surety  for  contribution.^^ 

A  payment  of  a  judg-ment  of  one  co-surety  is  not  an  accord  and 
satisfaction  as  to  the  actions,^^  and  he  can  maintain,  at  once,  an  ac- 
tion against  his  co-sureties  for  contribution  and  without  waiting  to 
dispose  of  any  indemnity  that  the  principal  has  proved  as  security.^ 

12.  Buckner  v.  Stewart,  34  Ala.  Compare  Davis  v.  Bauer,  41  Ohio 
529;     Briggs     v.     Hinton,     14     Lea    St.  257. 

(Tenn.)   283;   Mason  v.  Pierrson,  69       18.  Cane  v.  Burney,  6  Ala.  780. 
Wis.  590,  34  N.  W.  921.  19.  Cathcart    v     Foulke,    13     Mo. 

13.  Warner  v.  Morrison,  3  Allen  561;  Thomas  v.  Hubbell,  15  N.  Y. 
(Mass.)  566;  Pitt  v.  Purssard,  8  405;  Malin  v.  Bull,  13  Serg.  &  R. 
Mees  &  W.  538.  (Pa.)   441. 

14.  Machado  v.  Ferandez,  74  Cal.  20.  Rice  v.  Rice,  14  B.  Mon.  (Ky.) 
362,  16  Pac.  19.  335;    Konitzky   v.    Meyer,   49    N.    Y. 

14a.  Galson  v.  Brand,  75  111.  148;  571. 

Hotham  v.  Berry,  82  Kan.  412,  108  21.  Eubanks    v.    Sites    (Tex.    Civ. 

Pac.  801;  Felton  v.  Bissel,  25  Minn.  App.   1912),   146   S.  W.  952,   quoting 

20;    Craig  v.   Craig,   5  Rawle   (Pa.)  from  Freeman  on  Judgments,  p.  200. 

98.  22.  Coffee   v.    Tevis,    17   Cal.    239; 

15.  Burnell  v.  Minot,  4  Moor  340,  Williams  v.  Riehl  (127  Cal.  365),  59 
16  E.  C.  L.  375.  Pac.  762. 

16.  Stockmeyer  v.  Oertling,  35  La.  23.  Johnson  v.  Vaughn,  65  111. 
Ann.  469.  425;    Bachelder    v    Fiske,    17    Mass.. 

17.  Houck  V.  Graham,  106  Ind.  464;  Paulin  v.  Kaighn,  29  N.  J.  L. 
195,  6  N.  E.  594.  483. 


§§  194b,  195  'Suretyship  and  Guaranty.  224 

Contribution  originally  was  enforceable  only  in  courts  of  equity, 
but  now  also  in  courts  of  law,  wbich  take  jurisdiction  on  the  ground 
of  an  implied  promise  on  the  part  of  each  joint  debtor  or  surety  to 
contribute  his  share  to  make  up  the  loss.^"* 

§  194b.  Right  to  Contribution — Not  Subject  to  Judicial  Con- 
trol,— The  right  of  contribution  is  a  real  one  growing  out  of  the 
relations  of  the  parties,  not  a  mere  privilege  to  be  extended  or  not 
in  judicial  discretion.  The  right  may  be  contracted  away  or  lost 
by  violation  of  some  co-relative  right,  but  it  is  not  within  the  prov- 
ince of  the  court  to  give  it  or  to  take  it  away.^^ 

§  194c.  Right  to  Contribution — Accommodation  and  Compen- 
sated Sureties. — The  question  of  contribution  is  not  affected  by 
the  fact  that  one  of  two  co-sureties  is  a  surety  for  coinpensation 
while  the  other  is  a  surety  for  accommodation.^'^ 

§  195.  Payment  by  Note. — One  surety  may  make  payment  by 
his  own  negotiable  note  when  the  debt  is  due,  and  then  compel  con- 
tribution from  the  other  co-sureties,  though  his  own  note  is  not  yet 
-due.^^     This  is  so  because  his  negotiable  note  is  equivalent   to 

24.  Powers  v.  Nash,  37  Me.  322;  the  law.  The  court  is  to  apply  the 
Oldham  v.  Brown,  28  Ohio  St.  41.        law  as  it  is  given,  not  make  it  for 

25.  Estate  of  Koch,  148  Wis.  548,    the  found  situation." 

134  N.  W.  663,  Per  Marshall,  J.,  who  26.  United  States  Fidelity  &  Guar- 

further      said:        "The      individual  anty  Co.  v.  McGinnis  Adm'r,  147  Ky. 

chancellor    cannot,    as    an    original  C.  781,  145  S.  W.  1112;  citing  Lewis' 

proposition   do   in   each   case   what  Adm'r   v.  United   States  Fidelity  & 

he  may  think  will  fit  the  facts  from  Guaranty  Co.,  144  Ky.  425,  138  S.  W. 

the  standpoint  of  justice  in  the  ab-  305. 

stract.      He    cannot    merely    seize  27.  Illinois. — Ralston  v.  Wood,  15 

upon   his  ideal  in  the   moral   sense  111.  171. 

and   vitalize   it  by  a  decree.     That  Indiana. — Nixon  v.  Beard,  111  Ind. 

would  make  contribution  depend  on  137,  12  N.  E.  131. 

arbitration  in  the  habiliments  of  ju-  Massachusetts.  —  Chandler         v. 

dicial  administration.     Contribution  Brainard,  14  Pick.  285. 

is  dependable  upon  pretty  definitely  Missouri. — Ryan  v.  Krusen,  76  Mo. 

established    legal    rules,    applicable  A-  p.  496. 

to  situations  which  may  vary  greatly  Nebraska. — Smith     v.     Mason,    44 

as  regards  facts  but  fall  into  pretty  Neb.  610,  63  N.  W.  41. 

well   defined   general   classes.     The  >'ew  York. — Wetherby  v.  Mann,  11 

facts  dependable  upon  concession  or  Johns.  518. 

evidence,  or  both,  being  found,  the  As  to  surety  giving  his  own  note 

class   and    result   are   governed   by  in  payment  of  the,  see  also  §  180. 


225  Rights  of  Co-sureties.  §  196 

money ;  and  as  the  maker  will  be  liable  to  the  indorser,  he  might 
be  subject  to  a  double  liability  unless  the  note  should  be  deemed 
as  payment  of  the  debt  for  which  it  was  given.  And  substituting 
a  negotiable  note  is  such  a  payment  as  will  entitle  the  surety  who 
gave  it  to  maintain  indebitatus  assumpsit  against  the  co-surety  for 
<K)ntribution  ;  because  indehtitatus  assumpsit  lies  only  upon  a  prom- 
ise to  pay  money  or  its  equivalent.  But  where  one  of  several 
sureties  has  satisfied  the  debt  without  advancing  any  money  or  any- 
thing equivalent,  the  law  does  not  imply  any  promise  by  a  co- 
surety to  pay  money  in  contribution  ;^^  hence,  payment  by  a  bond 
or  non-negotiable  paper  will  not  entitle  the  surety  to  contribution.^' 
But  in  some  jurisdictions  payment  made  in  any  mode,  either  in 
property,  negotiable  paper,  or  securities,  is  sufficient,  if  such  pay- 
ment is  received  as  a  full  satsfaction  of  the  demand,  and  will  be 
treated  as  cash,  even  if  it  be  a  bond  f^  because  a  bond  is  equivalent 
to  coin.^^  And  the  payment  is  sufficient  to  compel  contribution, 
though  the  maker  becomes  insolvent  and  never  pays  the  uote.'^ 
But  if  the  creditor  delivers  the  note  to  the  maker  as  a  gift  before 
the  surety  tries  to  compel  contribution,  he  has  no  equity  to  recover 
contribution  against  his  co-sureties.^^ 

§  196.  Enforcement  at  Law. — At  law,  if  one  co-surety  pays 
the  whole  debt,  his  right  to  contribution  is  complete.  But  he  can- 
not sue  two  or  more  jointly,  but  he  must  sue  each  separately,  and 
he  can  only  recover  from  each  an  aliquot  portion  of  the  debt,  to  be 
ascertained  by  the  number  of  sureties,  and  in  many  States  with- 
out regard  to  their  solvency.^*    Thus,  where  a  co-surety  has  paid 

28.  Wetherby  v.  Mann,  11  Johns.  Texas, — Bouhward  r.  Robinson,  8 
<N.  Y.)  518.  Tex.  32. 

29.  California. — Stone  v.  Hammell,  Wisconsin.— Earth  t.  Graf,  101 
83  Cal.  547,  23  Pac.  703.  Wis.  27,  76  N.  W.  1100. 

Indiana.— White  v.  Miller,  47  Ind.  30.  Ralston  v.  Wood,  15  111.  159, 

385.  171;   Robertson  v.  Maxcey,  6  Dana 

Missouri. — Huse  t.  Ames,  104  Mo.  (Ky.)   104. 

SI,  15  S.  W.  965.  31.  Cox  v.  Reed,  27  111.  434. 

New   York. — Cummings   v.   Hock-  32.  Owen  v.  McGehee,  61  Ala.  440. 

ley,  8  Johns.  202.  33.  Stebbins    v.    Mitchell,    82    Ky. 

Fennsylyania. — Morrison   v.   Ber-  535. 

key,  7  Serg.  &  R.  238.  34.  Illinois.- Sloo  v.  Pool,  15  111. 

South   Carolina. — Peters   v.    Bay-  48;    Moore  v.  Bruner,  31   111.  App. 

hill,  1  Hill  237.  400. 
15 


§  196 


ISURETYSHIP  AND  GUARANTY. 


226 


a  note,  he  is  entitled  to  contribution  from  eacli  of  his  co-sureties 
in  aliquot  parts  according  to  their  number,  with  interest  and  other 
necessary  expenses.^"  But  when  the  co-surety  pays  no  attorney  fees, 
he  cannot  collect  them  pro  rata  from  his  co-sureties,  because  a  co- 
surety cannot  speculate  off  his  co-sureties.^^  Where  the  employ- 
ment of  counsel  is  prudent  and  necessary,  the  surety  who  pays  at- 
torney fees  under  such  circumstances  is  entitled  to  contribution, 
the  same  as  another  surety  who  pays  the  judgment  or  decree  recov- 
ered against  him.^^  So  contribution  may  be  enforced  for  necessary 
traveling  expenses.^ 

When  a  partnership  is  a  co-surety,  it  is  but  a  unit  as  to  the 
question  of  contribution."* 

In  some  of  the  States  contribution  is  given  at  law  as  well  as  in 
equity,  according  to  the  number  of  solvent  sureties.^''  And  so  in 
those  States  where  the  distinction  between  law  and  equity  has  been 
abolished,  the  number  of  solvent  sureties  liable  to  contribution  is 


Kentucky. — Morrison  v.  Poyntz,  7 
Dana  307. 

North  Carolina.— See  Board  of 
Commissioners  of  Davidson  Co.  v. 
Dorset,  151  N.  C.  307,  66  S.  B.  132. 

Oregon. — Fischer  v.  Garther,  32 
Oreg.  161,  51  Pac.  736. 

Texas. — See  Smart  v.  Panther,  42 
Tex.  Civ.  App.  262,  95  S.  W.  679. 

England.— Cowell  v.  Edwards,  2 
Bos.  &  P.  268. 

Compare  McAllister  v.  Irwin's  Es- 
tate, 31  Colo.  253,  73  Pac.  47,  upon 
the  question  of  insolvency  of  one 
or  more  of  the  sureties.  Also  cases 
cited  subsequently  in  this  section  on 
this  point. 

Prior  equities  not  considered  in  a 
suit  at  law.  Knight  v.  Weeks,  115 
Fed.  970,  53  C.  C.  A.  366. 

Tlie  Missouri  statnte  conferring  a 
right  of  action  at  law  did  not  take 
away  the  remedy  at  equity,  but 
simply  conferred  a  cumulative  rem- 
edy. D>'sart  V.  Crow,  170  Mo.  275, 
70  S.  W.  689,  construing  Rev.  St. 
1899,   §§   4504-4509. 


35.  Dodd  V.  Winn,  27  Mo.  504; 
Slothoff  V.  Dunham,  19  N.  J.  L.  181; 
Acers  v.  Curtis,  68  Tex.  423,  4  S.  W. 
551. 

36.  Acers  v.  Curtis,  68  Tex.  423,  4 
S.  W.  551. 

87.  Davis  v.  Emerson,  17  Me.  64; 
Gross  v.  Davis,  87  Tenn.  226,  11  S. 
W.  92;  Fletcher  v.  Jackson,  23  Vt. 
581. 

38.  Preston  v.  Campbell,  3  Hay- 
wood (Tenn.)  20. 

39.  Chaffee  v.  Jones,  19  Pick. 
(Mass.)  260. 

40.  Colorado. — McAllister  v.  Ir- 
win's Estate,  31  Colo.  253,  73  Pac. 
47. 

Indiana. — Michael  v.  Allbright, 
126  Ind.  172,  25  N.  E.  902. 

New  Hampshire.  —  Currier  v. 
Baker,  51  N.  H.  613. 

South  Carolina. — Harris  v.  Fergu- 
son, 2  Bailey  L.  (S.  C.)  397. 

Vermont. — Mills  v.  Hyde,  19  Vt. 
59;  Liddell  v.  Wiswell,  59  Vt.  365,  8 
Atl.  680. 


227  Rights  of  Co-sueeties.  §  197 

the  basis  of  apportionment.^^     And  contribution  is  apportioned 
among  solvent  sureties  by  statute  in  some  States/^ 

In  case  the  portion  due  from  one  of  the  sureties  is  paid  by  him 
and  the  suit  against  him  is  dismissed  the  remaining  sureties  have 
no  cause  for  complaint  upon  this  ground  as  their  liability  is  not 
thereby  affected." 

§  197.  Enforcement  in  Equity. — In  equity,  in  a  suit  by  a 
surety  against  his  co-surety  for  contribution,  only  the  solvent  co- 
sureties are  taken  into  account. ^^ 

In  courts  of  equity  when  an  adjustment  of  conflicting  claims 
became  necessary  and  a  surety  brought  suit  for  contributions 
against  co-sureties,  it  was  usually  required  to  make  the  principal 
and  all  solvent  sureties,  resident  within  the  State,  parties  plaintiff 
or  defendant,  that  a  full  determination  of  interests  involved  could 
be  had  in  one  and  the  same  suit.^^  And  it  has  been  decided  that 
in  such  a  suit  the  bill  is  not  subject  to  objection  on  the  ground  of 
misjoinder  of  defendants  because  two  of  the  co-sureties  were  al- 
leged to  have  paid  their  share  of  the  contribution.^^  The  surety  can 
recover  in  equity  a  pro  rata  amount  paid  by  taking  into  considera- 
tion the  number  of  solvent  sureties  by  excluding  the  insolvent 
ones.^^  And  in  considering  the  nimiber  of  solvent  co-sureties,  the 
removal  of  a  surety  from  the  State  is,  for  this  purpose,  equivalent 

42.  Connecticut. — Security  Ins.  Co.  45.  Gross  v.  Davis,  87  Tenn.  226, 
V.  Ins.  Co.,  50  Conn.  233.  11  S.  W.  92. 

Michigan. — Stewart  v.  Goulden,  52       In    Kentucky    a   surety    may    sue 

Mich.  143,  17  N.  W.  731.  his  co-surety  for  contribution  either 

Nebraska. — Smith  v.  Mason,  44  in  equity  or  law.  Pritts  v.  Kirch- 
Neb.  610,  63  N.  W.  66.  dorfer  (Ky.  1910),  124  S.  W.  882. 

Jforth   Carolina. — Scott  v.   Bryan,       46.  Hudson  v.  Aman   (N.  C.  1912), 

96  N.  C.  289,  3  S.  E.  235.  74   S.   E.   97,  citing  Rainey  v.   Yar- 

Yirginia. — Roberts    v.    Trigg,    32  borough,  37  N.  C.  249,  38  Am.  Dec. 

Gratt.  (Va.)   26.  681;  Adams  v.  Hayes,  120  N.  C.  383, 

43.  Couch   V.   Terry,   12   Ala.  227;  27  S.  E.  47. 

Van   Petten   v.   Richardson,   68   Mo.  47.  Dysart  v.  Crow,   170  Mo.  275, 

382;  Dodd  v.  Winn,  27  Mo.  504;  Mag-  70  S.  W.  689. 

ruder  v.  Admire,   4   Mo.  App.   133;  48.  Osterly    v.    Barber,    66    N.    Y. 

Faurot  v.  Gates,  86  Wis.  569,  57  N.  433;  Braman  v.  Blanchard,  4  Wend. 

W.  294.  (N.  Y.)    435;    Preston  v.  Preston,  4 

44.  Carter   v.   Fidelity   &    Deposit  Gratt.  (Va.)  88. 
Co.,  134  Ala.  369,  32  So.  632. 


I    197  iSuBETYSHIP  AND  GuABANTY.  228 

to  insolvency,  and  the  non-resident  co-surety  will  not  be  counted  ;* 
and  so  an  insolvent  co-surety  need  not  be  made  a  party  to  the  suit.** 
At  law,  while  there  is  a  conflict  of  authority  upon  the  subject,  the 
weight  of  authority  seems  to  be  that  insolvency  of  the  principal 
debtor  need  not  be  averred  in  order  to  establish  the  right  of  con- 
tribution ;  because  this  right  is  founded  upon  the  implied  promise 
of  each  surety  to  pay  an  aliquot  part  of  the  debt  in  case  of  the  prin- 
cipal's default.    And  as  the  action  against  each  is  separate  and  de- 
pendent upon  an  enforcement  of  the  strict  letter  of  the  implied 
assumpsit,  the  default,  and  not  the  insolvency  of  the  principal,  is 
the  ingredient  that  renders  the  remedy  effectual.    .But  equity,  to 
prevent  a  multiplicity  of  suits  and  avoid  a  circuity  of  remedies, 
will  compel  the  surety  who  has  paid  the  debt  to  recover  the  same 
from  the  principal  if  he  is  solvent,  on  the  theory  that  his  co-surety, 
in  equity,  may  be  compelled  to  contribute  in  excess  of  his  implied 
agreement ;  so  in  that  forum  he  cannot  be  compelled  to  respond,  at 
all,  if  the  principal  is  solvent;  hence  the  necessity  of  alleging  the 
insolvency  of  the  principal  as  a  condition  precedent  to  the  right  of 
contribution  in  equity.     Many  decisions,  though  not  all,  support 
this  doctrine,  and  hold  that  it  is  incumbent  upon  the  plaintiff  in  a 
suit  in  equity  to  allege  the  insolvency  of  the  principal  as  a  condi- 
tion precedent  to  the  enforcement  of  contribution  of  co-sureties.^^ 
If  a  surety  secures  consent  of  his  co-surety  to  a  compromise  of 
their  joint  claim  against  the  principal  obligor,  without  disclosing 
an  advantage  obtained  in  the  transaction,  the  failure  to  disclose 
being  without  actual  intent  to  defraud,  he  is  guilty  of  constructive 
fraud,  and  is  liable  to  share  in  some  proper  way  the  advantage 
with  such  co-surety.^^ 


49.  Connecticut.  —  Security     Ins.  Wisconsin. — Faurot   v.    Gates;    86 

Co.  V.  Ins.  Co.,  50  Conn.  233.  TT^s.  569,  57  N.  W.  294. 

Kentucky.— Bosley    v.    Taylor,    5  60.  Johnson    v.    Vaughn,    65    111. 

Dana  159.  425;     Ellesmere     Brewing     Co.     v. 

New     Hampshire.— Boardman     v.  Cooper  (1896),  1  Q.  B.  75. 

Paige,  11  N.  H.  431.  61.  Morrison    v.    Poyntz,    7    Dana 

Sontli     Carolina,  —  McKenna    v.  (Ky.)    307;    Fischer   v.    Gaither,   32 

George,  2  Rich.  Eq.  15.  Ore.  161,  51  Pac.  736;  Gross  v.  Daviar, 

Texas.— Acers   v.   Curtis,   68   Tex.  87  Tenn.  226,  10  Am.  St.  Rep.  637. 

423,  4  S.  W.  551.  62.  Estate  of  Koch,  148  Wis.  548, 

Yermont.- Liddell  v.  Wiswell,  59  134  N.  W.  663. 
Vt.  365,  8  Atl.  860. 


229  Eights  of  Co-sureties.  §§  198,  199 

§  198,  The  Co-surety  Cannot  Speculate  to  the  Injury  of  His 
Co-surities. — The  surety  paying  cannot  speculate  and  thereby 
derive  benefits  not  shared  by  his  co-sureties.  Thus,  if  a  co-surety 
purchased  the  note  of  the  principal  for  less  than  its  face  value,  his 
€0-sureties  are  entitled  to  share  in  the  benefits  of  the  bargain,^^  So 
if  a  surety  pays  less  than  the  whole  debt,  he  can  recover  only  the 
pro  rata  share  from  the  other  sureties,  of  the  amount  he  paid.^* 
In  order  to  recover  of  the  co-sureties,  he  must  pay  in  excess  of  his 
share  of  the  debt.^^  If  he  pays  the  debt  in  property,  the  value  of 
the  property  is  the  basis  upon  which  contribution  can  be  enforced.^® 

When  a  surety  has  bought  the  claim  of  his  principal  at  a  dis- 
count, he  cannot  compel  his  co-sureties  to  contribute  more  than 
their  just  proportion  of  the  sum  paid ;  otherwise  the  co-sureties 
would  stand  in  a  worse  position  than  the  principal;"  that  is,  he 
can  recover  only  the  proportionate  amount  of  the  sum  paid  by  him 
when  it  is  in  excess  of  his  share  of  payment.^^ 

§  199.  Surety  of  a  Surety. — A  surety  of  a  surety  is  not  liable 
to  contribution  to  a  debt  of  a  co-surety  of  the  principal.^^  Thus, 
where  a  party  signs  a  note  as  security  for  one  who  is  himself  only  a 
surety  for  the  principal  maker,  he  is  not  liable  in  a  suit  for  con- 
tribution by  the  one  for  whom  he  signed  as  surety.^* 

53.  Aoers  v.  Curtis,  68  Tex.  423,  4  Massachusetts. — Kelly  v.  Page,  7 

S.  W.  551.  Gray  213. 

64.  Morgan  v.  Smith,  70  N.  Y.  537;  Texas. — Edmonds  v.   Sheahan,  47 

Gcurdin  v.  Trenholm,  25  S.  C.  362;  Tex  443. 

Bryan  v.  McDonald,  15  Lea  (Tenn.)  Virginia.— Tarr  v.  Ravenscroft,  12 

581;  Lowell  v.  Edwards,  2  Bos.  &.  P.  Gratt.  642. 

268;   Browne  v.  Lee.  6  Barn.  &  C.  England. — In    re   Arcedeckna,    24 

689.  Ch.  Div.  709. 

55.  Fletcher  v.   Grover,   11   N.  H.  69.  Baldwin    v.    Fleming,    90    Ind. 

368.  177;     Knox    v.    Vallandingham,    13 

66.  Jones  v.  Bradford,  25  Ind.  305;  Smed.  &  M.  (Miss.)  520;  Tom  v. 
Hickman  v.  McCurdy,  7  J.  J.  Marsh.  Goodrich,  2  Johns.  (N.  Y.)  214; 
(Ky.)  555.  Adams  v.  Flanagan,  36  Vt.  400. 

67.  Fuselier  v.  Babeneau,  14  La.  Compare  Stout  v.  Vause,  1  Rob. 
Amn.  777;    Mason  v.  Lord,  20  Pick.  (Va.)  179. 

(Mass.)  447;  Currier  v.  Fellows,  27  60.  Robertson  v.  Deatharge,  82  111. 

N.  H.  366;   Sinclair  v.  Redington,  56  511;    McCoIIum    v.    Broughton,    133 

N.  H.  146.  Mo.  601,  30  S.  W.  1028,  33  S.  W.  476, 

68.  Alabama. — Owen   v.   McGehee,  34  S.  W,  480. 
61  Ala.  440. 


§§  200,  201  Suretyship  and  Guaranty.  230 

i;  200.  Obligation  to  Contribute.  — ^At  law  the  obligation  to  con- 
tribute is  a  several,  and  not  a  joint,  obligation."  So  a  co-surety 
who  is  a  non-resident,  is  not  a  necessary  party  defendant  to  an 
action  for  contribution,  as  the  liability  of  co-sureties  to  each  other 
is  not  joint,  but  several.*'^  At  law,  he  can  only  recover  from  each 
co-surety  severally  an  aliquot  proportion  of  the  debt,  ascertained  by 
the  whole  number  of  co-sureties.^^  And  at  law  he  may  recover  un- 
der the  common  counts  the  amount  due  by  way  of  contribution 
from  each  co-surety.^*  And  he  may  recover  necessary  attorney 
fees  and  other  expenses  in  litigation  with  the  principal.^'' 

If  the  sureties  be  to  the  same  party  for  the  same  principal  and 
to  the  same  extent,  it  is  not  material,  so  far  as  the  right  of  contribu- 
tion is  concerned,  whether  the  sureties  were  bound  jointly  or  sev- 
erally, or  by  the  same  or  by  distinct  undertakings.*^'' 

A  breach  of  one  surety  of  his  duty  to  a  co-surety,  causing  loss 
to  the  latter,  to  that  extent,  is  a  legal  and  equitable  defense  in  his 
behalf  against  any  claim  of  the  former  for  contribution." 

§  201.  Liability  of  Surety's  Estate. — One  surety  who  has  paid 
the  debt  is  entitled  to  be  subrogated  to  all  the  rights  and  remedies 
of  the  creditor  as  against  his  co-surety  in  precisely  the  same  man- 
ner as  against  the  principal  debtor.  Hence,  he  can  have  contribu- 
tion from  the  estate  of  a  co-surety  who  is  dead.^^    And  this  right  to 

61.  Adams  v.  Hayes,  120  N.  C.  383,  anty  Co.  v.  McGinnis'  Adm'r,  147  Ky. 
27  S.  E.  47;  Graves  v.  Smith,  4  Tex.    781,  145  S.  W.  1112. 

Civ.  App.  537;  Johnson  V.  Harvey,  84  67.  Estate  of  Koch,  148  Wis.  548, 

N.  Y.  363.  134  N.  W.  663. 

62.  Voss  V.  Lewis,  126  Ind.  155,  25  68.  United  States.— Lidderdale  v. 
N.  E.  892.  Robinson,   12   Wheat.   594,   6   L.   Ed. 

63.  Sloo  V.  Pool,  15  111.  47;  Moore  740. 

V.  Bruner,  31  111.  App.  400;  Porter  v.  Alabama.— Handley    v.    Heflin,    84 

Horton,    80   111.   App.    333;    Odlin   v.  Ala.  600,  4  So.  725. 

Greenleaf,   3   N.   H.   270;    Harvey   v.  Illinois.— Conover  v.   Hill,   76    111. 

Drew,  82  111.  606.  342. 

64.  Porter  v.  Horton,  80  111.  App.  Indiana. — Landers  v.  Weelburg, 
333;  Powell  v.  Edwards,  2  Bos.  &  P.  107  Ind.  266,  7  N.  E.  573. 

267.  New  York. — Johnson  v.  Harvey,  84 

65.  Gross  v.  Davis,  87  Tenn.  226;    N.  Y.  363. 

Fletcher    v.    Jackson,    23    Vt.    581;        Pennsylvania. — Malln   v.    Bull,   13 
Davis  v    Emerson,  17  Me.  64.  SerR.  &  R.  441. 

66.  United  States  Fidelity  &  Guar-       Vorniont.— Fletcher  v.  Jackson,  23 

Vt.  56. 


231  Rights  of  Co-sukjeties.  §  202 

contribution  may  he  had  against  the  heirs  of  the  co-surety,  after 
the  discharge  of  the  administrator.^^  And  the  distributees  must 
contribute  in  proportion  to  what  they  have  received.^"  It  is  the 
general  rule  that  the  estate  of  a  deceased  co-surety  is  liable  to  con- 
tribution, whether  he  died  before  or  after  the  liability  arises.^^ 

And  the  administrator  of  the  estate  of  a  deceased  surety  who 
tas  paid  the  debt  of  the  principal  may  proceed  against  the  co- 
sureties for  contribution.^^ 


§  202.  Remedy  Against  Co-surety  Before  Payment. — A  co- 
surety, before  he  pays  the  debt,  may,  it  is  held,  maintain  a  suit  in 
-equity  compelling  contri'bution,  after  the  debt  is  due  and  unpaid. 
Thus,  it  has  been  decided  that  a  surety  against  whom  a  judgment 
has  been  obtained  by  the  creditor  for  the  full  amount  of  the  debt 
secured,  but  who  has  paid  nothing  in  respect  thereof,  can  maintain 
an  action  against  a  co-surety  to  compel  him  to  contribute  towards 
the  common  liability,''^  and  that  before  the  payment  of  the  debt 
which  is  due,  any  one  of  several  co-sureties  may  maintain  a  suit 
in  equity  against  his  co-surety  to  contribute  to  the  payment  of  the 
debt  if  the  principal  is  unable  to  pay  it.^* 

And  so  a  surety  may  bring  suit  in  equity  against  a  co-surety  for 
contribution,  when  the  latter  is  about  to  make  a  fraudulent  disposi- 
tion of  his  property  so  as  to  escape  liability  in  payment  of  the 
principal's  debt,  who  is  insolvent.^^  But  when  the  surety  is  pri- 
marily liable  to  pay  the  debt,  his  action  at  law  or  in  equity  cannot 
be  maintained  until  he  has  paid  the  amount.     Until  he  has  paid, 

Yirginia, — Pace   v.    Pace's   Adm'r,  son  v.  McDowell,  130  N.  C.  246,  41  S. 

95  Va.  792,  30  S.  E.  361.  E.  287. 

69.  Gibson  V.  Mitchell,  16  Fla.  519;        73.    Walmerhausen      v.      Gulllck 
Stevens  v.  Tucker,  87  Ind.  109;  Zol-  (1893),  2  Ch.  514. 

lickoffer  v.  Seth,  44  Md.  359.  Kig'ht   to   proceed   under   Georgia 

70.  Zollickhoffer  v.  Seth.  44  Md.  Ciyil  Code,  §§  2985-2989,  where  surety 
359.  pays    part   of   debt,    see    Cooper    v. 

Compare  Primrose  v.  Bromley,  1  Chamblee,  114  Ga.  116,  39  S.  E.  917. 

Atk.  90;  Waters)  v.  Riley,  2  Har.  &  74.  Hyde  v.  Tracy,  2  Day  (Conn.) 

G.  (Md.)  305.  492;  Hodgson  v.  Baldwin,  65  111.532; 

71.  Vliet  V.  WyckofE,  42  N.  J.  Eq.  Morrison  v.  Poyutz,  7  Dana  (Ky.) 
642.  307. 

72.  Norwood  v.  Washington,  136  75.  Smith  v.  Rumsey,  33  Mich.  183; 
Ala.  657,  33  So.  869.    Examine  Robin-  Bowen  v.  Haskins,  45  Miss.  183. 


§  203 


Suretyship  and  Guaeanty. 


232 


there  is  neither  an  equitable  obligation  or  an  implied  contract  to 
make  such  contribution.^^ 

§  203.  Co-sureties  Under  Different  Instruments. — It  is  well 
settled  that  parties  may  be  co-sureties  under  different  instruments, 
at  different  times,  and  without  the  knowledge  of  each  other,  pro- 
vided that  the  obligations  into  which  they  enter  are  for  the  same 
engagement  and  for  the  same  principal.  It  is  sufficient  for  the 
right  to  claim  contribution  that  it  appears  that  the  parties  are 
under  obligation  to  pay  the  same  debt  as  sureties  for  a  third  per- 
son." And  this  rule  applies  to  sureties  on  successive  bonds.  Thus, 
where  sureties  on  an  executor's  bond  are  discharged  and  new 
sureties  taken,  the  two  sets  of  sureties  become  jointly  liable  for 
breach  of  the  bond  which  occurred  before  the  discharge,  and  the 


76.  Massachnsetts.  —  Mason  v. 
Lord,  20  Pick.  447. 

Missoari. — Weidmeyer  v.  Landon, 
66  Mo.  App.  520. 

New  York. — Morgan  v.  Smith,  70 
N.  Y.  542. 

Ohio. — Covey  v.  Bostwick,  20  Ohio 
St.  337. 

Tennessee. — Gros&  v.  Davis,  87 
Tenn.  226,  11  S.  W.  92. 

Texas. — Glasscock  v.  Hamilton,  62 
Tex.  166. 

Virginia. — Gordon  v.  Rixey's  Adm'r, 
86  Va.  853,  11  S.  B.  562. 

Wisconsin. — Bushnell  v.  Bushnell, 
77  Wis.  435,  46  N.  W.  442. 

77.  California. — Powell  v.  Powell, 
48  Cal.  234. 

Georgia. — Waldrop  v.  Wolff,  114 
Ga.  610,  40  S.  E.  830;  Snow  v. 
Brown,  100  Ga.  117,  28  S.  E.  77. 

Illinois. — Golson  v.  Brand,  75  111. 
148. 

Indiana. — Houck  v.  Graham,  106 
Ind.  195,  6  N.  E.  594,  55  Am.  Rep. 
727. 

Kentncky.— Bosley  v.  Taylor,  5 
Dana  157,  30  Am.  Dec.  677;  Brecken- 
ridge  V.  Taylor,  5  Dana  110. 


Louisiana. — Stockmeyer  v.  Oert- 
ling,  35  La.  Ann.  467. 

Massacliusetts. — Warner  v.  Morri- 
son, 3  Allen  566;  Chaffee  v.  Jones, 
19  Pick.  260. 

Michigan. — Shumfelt  v.  Moore,  93 
Mich.  564,  53  N.  W.  722. 

Minnesota. — Young  v.  Shunt,  30 
Minn.  503,  10  N.  W.  402. 

New  Hampshire. — Presoott  v.  Per- 
kins, 16  N.  H.  305. 

New  York. — Aspinwall  v.  Sacchi, 
57  R  Y.  531;  Norton  v.  Coons,  6  N. 
Y.  33;  Toucey  v.  Schell,  15  Misc.  359, 
37  N'.  Y.  Supp.  879;  Atwater  v.  Far- 
thing, 118  N.  C.  388,  24  S.  E.  736. 

North  Carolina — Jones  v.  Blenton, 
41  N.  C.  115.  51  Am.  Dec.  415. 

Ohio. — Robinson  v.  Boyd,  60  Ohio 
St.  57,  53  N.  E.  494. 

Oregon. — Thompson  v.  Dekum,  32 
Ore.  506   52  Pac.  517. 

South  Carolina. — Harris  v.  Fergu- 
son, 2  Bailey  397. 

Tennessee.  —  Odom  v.  Odom,  2 
Baxt.  446. 

Vermont. — Flanagan  v.  Post,  45 
Vt.  246. 

Virginia.  —  Rosenbaum  v.  Good- 
man, 78  Va.  121. 


233  Eights  of  Co-sueeties.  §§  204,  205 

right  of  contribution  exists  as  between  co-sureties.'^  And  two  per- 
sons are  co-sureties  when  one  is  on  a  general  official  bond  and  the 
other  on  a  special  bond  required  under  the  same  obligation  with 
relation  to  a  special  debt.'^ 

§  204.  The  Obligation  Must  Be  the  Same. — If  the  obligation 
of  the  different  sureties  are  for  wholly  different  things,  or  have  no 
relation  to  each  other,  though  they  arise  out  of  the  same  original 
indebtedness,  then  there  is  no  right  of  contribution  among  the 
several  sureties.^"  iSo  where  one  of  the  sureties  and  the  principal 
execute  a  new  note,  which  takes  the  place  of  the  old  note,  the  surety 
upon  such  new  note  will  not  be  entitled  to  contribution  from  the 
other  sureties  upon  the  old  note  for  which  the  new  note  was  exe- 
cuted.*^ 

§  205.  Co-sureties  Limiting  Their  Liability  in  Different 
Amounts. — Co-sureties  may  limit  their  liability.  So  where  two 
or  more  persons  bind  themselves  as  sureties  for  a  common  prin- 
cipal and  in  different  amounts,  in  case  of  contribution,  they  are 
liable  in  proportion  to  the  limitation  of  their  respective  liability, 
and  not  in  equal  amounts.  Where  the  claim  of  the  creditor  is  to 
the  full  amount,  each  must  pay  up  to  the  fixed  limit  of  his  liability ; 
but  where  the  claim  is  less  than  such  full  amount,  and  is  dis- 
charged by  one,  the  claims  must  be  proportionately  borne  by  the 
others,  even  where  the  claim  does  not  exceed  the  fixed  limit  of  the 

Wisconsin. — Rudolf  v.  Malone,  104  Pennsylyania. — Commonwealth    v. 

Wis.  470,  80  N.  W.  743.  Cox,  36  Pa.  St.  442. 

England. — Ellesmere  Brewing  Co.  See  §  209  herein,  as  to  liability  to 

V.  Cooper  (1896)  2  Q.  B.  75;   Deering  contribute  on   successive  bonds. 

V.  Winchelsea,  1  Cox  318;  Craythorne  79.  Elbert  v.  Jacoby,  8  Bush  (Ky.) 

V.    Swinburne,    14   Ves.    164;    In    re  547;  Cherry  v.  Wilson,  78  N.  C.  164. 

Ennis  (1893),  3  Ch.  238.  80.  Salyers  v.   Ross,  15   Ind.   130; 

78.  Illinois.— Pinkstaff  v.  State,  59  Kellar  v.  Williams,   10  Bush    (Ky.) 

111.  148.  216;  Rosenbaum  v.  Goodman,  76  Va. 

Massachnsetts. — Choate  v.  Arring-  121. 

ton,  116  Mass.  552.  See,  also,  cases  cited  in  preceding^ 

Missouri. — State    v.    Berring,    74  section. 

Mo.  87.  81.  Tittle  v.  Bennett,  94  Ga.  405,  21 

New  York.— Scofield  v.  Churchill,  S.  E.  62;   Bell  v.  Boyd,  76  Tex.  133. 

72  N.  Y.  565.  See,  also,  Chapman  v.  Garber,  46 

Neb.  16,  64  N.  W.  362. 


£-  206  Suretyship  and  Guaranty.  234 

liability  of  the  surety  who  has  paid.^^  Where  the  same  default  of 
the  principal  renders  all  the  co-sureties  responsible,  they  must  con- 
tribute equally  if  each  is  a  surety  to  an  equal  amount ;  but  if  not 
equal,  then  proportionately  to  the  amount  for  which  each  is  a 
surety.^^ 

■Sureties  for  the  same  principal  and  for  the  same  engagement, 
even  although  bound  by  different  instruments  and  for  different 
amounts  have  a  common  interest  and  a  common  burden ;  so  if  one 
security  who  is  directly  liable  to  the  creditor  pays  such  creditor,  he 
can  claim  contribution  from  his  co-sureties,  whose  obligations  to  the 
creditor  he  has  discharged.  Where  sureties  are  bound  jointly  and 
severally,  but  limit  their  liability,  the  liability  can  only  be  en- 
forced against  each  surety  to  the  limit  of  the  liability  fixed  in  the 
instrument;  and  when  one  has  paid  to  the  limit  of  his  liability, 
there  can  be  no  contribution  exacted  from  him.  And  if  the  cir- 
cumstances are  such  that  he  discharges  the  obligation  for  less  than 
his  individual  limit,  yet  he  can  compel  contribution  from  the  other 
co-sureties.^^ 

But  though  the  sureties  may  agree  among  themselves  as  to  the 
amounts  in  which  they  will  be  bound  yet  such  agreement  may  not 
be  controlling  where  the  extent  of  their  individual  liability  is  the 
subject  of  statutory  control.^^ 

§  206.  Accommodation  Indorsers. — Some  courts  hold  that,  in 
the  absence  of  agreement,  the  legal  liability  of  the  parties  to  a 
promissory  note  is  to  be  determined  by  the  relation  they  bear  to 
such  note ;  and  the  fact  that  one  of  them  is  the  principal  debtor, 
and  the  others  sign  for  his  accommodation,  will  not  change  this 
note  or  make  the  whole  number  signing  co-sureties  as  to  each 
other.*^     Thus,  where  one  of  two  accommodation  signers  executes 

82.  Ellesmere  Brewing  Co.  v.  86.  United  States.  —  McCarty  v. 
Cooper  (1896),  1  Q.  B.  75.  Roots,  21  How.  432,  16  L.  Ed.  162; 

83.  Pendlebury  v.  Walker,  4  Y.  &    McDonald  v.   Magruder,   3   Pet.   470, 

C.  (Exch.)    424;    Steel   v.   Dixon,  17    7  L.  Ed.  744. 

Ch.  D.  825;  In  re  Arcedeckne,  24  Ch.  Alabama. — Sherrod    v.    Rhodes,    5 

D.  709.  Ala.  683. 

84.  Ellesmere  Brewing  Co.  v.  Coniieeticnt. — Kersham  v.  Conklin, 
Cooper  (1896),  1  Q.  B.  75.  40  Conn.  81. 

85.  Board  of  Com'rs  of  Davidson  Indiana. — Armstrong  v.  Harsham, 
County  V.  Dorsett,  151  N.  C.  307,  66    61  Ind.  52. 

S.  E.  132. 


235  Rights  of  Co-sueeties.  §§  207,  208 

a  note  as  joint  maker  with  the  principal  debtor,  and  the  other  a3 
payee  and  indorser,  and  there  is  no  special  agreement  between 
them,  they  are  not  co-sureties.*^  However,  this  is  not  the  law  in 
other  jurisdictions,  and  accommodation  indorsers  are  considered  as 
co-sureties  and  liable  to  contribution.  Thus,  where  successive  in- 
dorsers, by  indorsing  as  an  accommodation  of  maker  of  the  note, 
though  at  different  times  and  without  mutual  agreement,  they  are 
held  as  co-sureties,  and  in  equity  will  be  liable  to  contribution.** 

§  207.  Surety  in  Legal  Proceedings. — Where  a  party  becomes 
a  surety  in  the  course  of  legal  proceedings  to  collect  a  debt  from 
the  principal  debtor,  he  is  not  a  co-surety  with  the  original  surety 
for  the  debt  when  contracted,  and  is  not  liable  to  contribution  to 
the  original  surety ;  neither  is  he  liable  to  the  other.**  If  the  orig- 
inal surety  pays  the  debt  he  will  be  substituted  in  the  place  of  the 
creditor  or  obligee  to  the  exclusion  of  the  surety  in  the  legal  pro- 
ceedings.*" 

§  208.  Indemnity  to  One  Surety. — The  indemnity  to  one 
surety  inures  to  the  benefit  of  the  others.*^ 

Inherent  in  a  joint  contract  of  guaranty  is  an  implied  mutual 

Michigan.  —  McGurk  v.  Huggett,  Virginia, — Rosenbaum     v.     Good- 

50  Mich.  187.  man,  78  Va.  121;  Preston  v.  Preston, 

South  Carolina, — Aiken  v.  Barkley,  4  Gratt.   88 ;    Langford  v.  Perrin,   5 

2  Spear  747.  Leigh.  552. 

Yirginia. — Hogue  v.  Davis,  8  Grat.  As  to  sureties  on  bonds  in  legal 

4.  proceedings,  see  Chap.  IX.  herein. 

87.  Wilson  v.  Stanton,  6  Blackf.  90.  Pott  v.  Nathans,  1  Watts  &  S. 
(Ind.)  507;  Hillegas  v.  Stephenson,  (Pa.)  155;  Schmitzel's  Appeal,  49 
75  Mo.  118.  Pa.  St.  23;  Wolf  v.  Stover,  107  Pa. 

88.  Freeman  v.  Cherry,  46  Ga.  14;  St.  206. 

Dillenback  v.  Dygert,  97  N.  Y.  303;  91.  Alabama,— Steele    v.    Mealing, 

Daniel  v.  McRae,  2  Hawks   (N.  C.)  24  Ala.  285. 

590;  Atwater  v.  Farthing,  118  N.  C.  Illinois.— Silver  v.  Dowell,  53  111. 

388,  24   S.  E.   736;    Stovall  v.  Bank,  260. 

78  Va.  188.  Indiana.— Moorman  v.  Hudson,  125 

See  §  14.  Ind.    504,    25    N.    E.    593;    Kalso    v. 

89.  Alabama.— Diinlop  v.  Foster,  7  Kalso,  16  Ind.  App.  615,  44  N.  E. 
Ala.  734;  John  v.  Jones,  16  Ala.  454.  1013,  45  N.  E.  1065. 

Ohio. — Smith  v.  Berry,  3  Ohio  33.  Iowa. — Rembrant    v.    Johnson,    62 

Pennsylvania, — Pott  v.  Nathans,  1  Iowa  155,  17  N.  W.  452. 

Watts  &  S.  155.  North    Carolina.— Carr    v.    Smith, 

Tennessee.— Chaffin    v.    Campbell,  129  N.  C.  232,  39  S.  E.  831. 

4  Sneed  184. 


§    208  iSuRETYSHIP  AND  GuAEANTY.  236 

agreement  that  any  special  means  of  immunity  from  or  indemnity 
for,  loss  acquired  by  one  of  the  sureties  shall  be  held  and  used, 
reasonably  for  the  common  benefit  of  them  all.  A  surety  having- 
control  of  such  means  is  a  quasi-trustee  for  his  associates  with  all 
incidental  duties.^^  The  right  of  the  co-surety  to  share  in  the  in- 
demnity given  to  another  surety,  results  not  from  contract  or  inten- 
tion of  the  principal  and  surety,  but  from  the  principles  of  equity 
arising  out  of  the  relation  which  the  sureties  bear  to  each  other.'^ 
If  the  indemnity  fails  without  any  neglect  of  the  party  indem- 
nified, then  there  is  no  right  of  contribution.^* 

Proof  of  loss  by  a  surety  of  the  primary  security  within  such 
time  and  under  such  conditions  as  to  raise  an  inference  of  negli- 
gent performance,  or  disregard  of  the  co-surety  duty,  there  being 
no  explanation  thereof,  shows,  prima  facie,  fatal  negligence,  for- 
feiting the  right  of  contribution.^^  If  the  surety  has  released  or 
wasted  the  security  given  him  by  the  principal,  he  loses  his  right 
to  contribution  to  the  extent  of  his  indemnity,^^  and  pro  rata  if  he 
hiis  wasted  a  part  of  the  indemnity.®^  And  the  surety  indemnfied 
must  account  to  those  who  pay  the  debt.^^  If  there  are  several  de- 
mands, with  different  co-sureties,  indemnity  given  to  one  who  is 
liable  on  all  should  be  proportioned  among  them.^^  If  the  co- 
surety applies  an  indemnity  bond  to  the  payment  of  the  debt,  he 
acquires  no  right  thereby  to  a  contribution  against  a  co-surety.*  It 
does  not  prevent  contribution  because  one  surety  takes  property  in 
trust  from  the  principal,  to  be  applied  on  the  debt.^ 


Oregon.— Farmers'    Nat.    Bank   v.  7  N.  E.  373;  Chilton  v.  Chapman,  la 

Snodgrass,  29  Ore.  395,  45  Pac.  758.  Mo.  470. 

Wyoming. — Cramer  v.  Redman,  10  97.  Goodloe    v.    Clay,    6    B.    Mon. 

Wyo.  328,  68  Pac.  1033.  (Ky.)    230;    Ramsey    v.    Lewis,    30 

England.— Berridge  v.  Berridge,  44  Barb.  (N.  Y.)  203. 

Ch.  Div.  168.  ^'  Whiteman  v.  Harriman,  85  Ind. 

92.  Estate  of  Koch,  148  Wis.  548,  49;   Hoover  v.  Mowser,  84  Iowa  43,. 
134  N.  W.  663.  50  N.  W.  62. 

93.  Scribner  v.  Adams,  73  Me.  541.  99.  Mueller  v.  Barge,  54  Minn.  514,. 

94.  Conley  v.  Buck,  100  Ga.  187,  28  56  N.  W.  36;  Barge  v.  Van  Der  Horck„ 
S.  E.  97.  57  Minn.  497,  59  N.  W.  630;  Brown  v. 

95.  Estate  of  Koch,  148  Wis.  548,  Ray,  18  N.  H.  102. 

1:^4  N.  W.  663.  !•  Gibson  v.  Shehan,  5  App.  Dist. 

9rr.  Frink  v.  Peabody,  26  111.  App.  Col.  391. 

290;  Sanders  v.Weelberg,  107  Ind.  266,  2.  Roeder     v.     Niedermeier,     112 

Mich.  608,  71  N.  W.  154. 


237  Rights  of  Co-sureties.  §§  209, 210 

The  rule  that  indemnity  to  one  surety  inures  to  the  benefit  of 
the  others  is  held  not  to  apply  where  sureties  have  paid  their  pro- 
portionate share  of  the  debt  and  security  is  subsequently  received 
by  one  or  more  of  them.^ 

§  209.  Liability  to  Contribute  on  Successive  Bonds. — The  giv- 
ing of  subsequent  bonds  with  the  same  penalties  for  the  perform- 
ance of  the  obligor's  duties,  makes  them  cumulative  securities,  and 
the  liability  of  the  sureties  thereon  for  contribution  is  as  if  all  had 
signed  the  same  bond  ;*  that  is,  the  obligation  of  the  sureties,  as 
between  themselves,  is  as  if  they  were  all  bound  by  the  same  instru- 
ment* So  where  successive  bonds  are  given  for  the  faithful  dis- 
charge of  a  trust,  all  the  bonds  given  during  the  continuance  of  the 
trust  are  cumulative,  and  the  sureties  on  each  bond  stand  in  the 
relation  of  co-sureties  to  the  sureties  on  all  the  other  bonds.*  But 
jsuch  sureties  will  not  be  liable  to  contribute,  with  a  surety  on  an- 
other bond,  to  the  payment  of  an  amount  charged  against  an  execu- 
tor, or  obligor,  for  interest  on  money  of  the  estate  loaned  to  the 
latter  surety.^ 

§  210.  Admissibility  of  Parol  Evidence  to  Show  That  Parties 
on  a  Promissory  Note  are  Co-sureties. — The  great  weight  of  au- 
thority is  that  parol  evidence  is  admssible  to  show  the  true  terms 
subsisting  ibetween  the  makers  of  a  promissory  note  when  con- 
tribution is  sought;  and  this  is  so  whether  their  subscription  ap- 
pears to  be  that  of  principals  or  sureties.  The  reason  upon  which 
the  rule  is  founded  is  that  the  note  is  the  measure  of  the  contract 

3.  Cramer  v.  Redman,  10  Wyo.  328,  North  Carolina.— Pickens  v.  Mil- 
fig  Pac.  1103.  ler,  83  N.  C.  543. 

4.  Thompson  v.  Dekum,  32  Ore.  Tennessee. — Odom  v.  Owen,  2  Baxt. 
506,  52  Pac.  517,  755.  446. 

5.  Indiana. — Stevens  v.  Tucker,  87  England. — Deering  v.  Winchelsea, 
Ind.  109.  2  Boe.  &  P.  279,  1  Ck)x.  310. 

Kentncky. — Bosley  v.  Taylor,  5  6.  National  Surety  Co.  v.  Di  Mar- 
Dana  157;  Cobb  v.  Haynes,  8  B.  Mon.  Bico,  55  Misc.  R.  (N.  Y.)  302,  105  N. 
137.  Y.  Supp.  272. 

Massachnsetts. — Brooks    v.    Whit-  7.  Crisfield  v.  Murdock,  127  N.  T. 

man,   142    Mass.    399,   8   N.   C.    117;  315,    27    N.    E.    1046;    Thompson    v. 

Lioring  v.  Bacon,  3  Cush.  465.  Dekum,   32   Ore.   506;    Eshleman   v. 

New  York.— Armitage  v.  Pulmer,  Bolenires,   144   Pa.  St.  269,  22  Atl. 

37  N.  Y.  494.  758. 

See  §§  9.  168. 


§    210  ISURETYSHIP  AND  GUARANTY.  238 

between  the  makers  and  the  payee,  and  not  between  the  makers 
themselves ;  and  tliat  their  correlative  and  interdependent  relations 
is  a  matter  wholly  collateral  to  the  primary  undertaking,  so  that 
parol  evidence  establishing  such  relation  does  not  vary  the  terms 
of  the  instrument,  or  written  contract.^  So  parol  evidence  is  com- 
petent to  show  the  relations  existing  between  makers  and  guar- 
antors or  indorsers,  who  are  bound  by  different,  distinct  and  inde- 
pendent contracts.  Such  evidence  in  this  class  of  cases  is  to  prove 
a  separate  contract  which  was  made  by  parol,  and  is  of  as  high  a 
character  as  the  law  requires  in  such  cases.^  And  so  the  relations 
between  the  parties  can  be  shown  by  parol  to  be  that  of  co-sureties, 
even  if  the  plaintiff's  had  been  promisors  and  the  defendant's  estate 
as  indorser.^"  And  so  a  contract  of  indorsement  is  one  implied  by 
the  law  from  the  blank  indorsement,  and  can  be  qualified  by  ex- 
press proof  of  a  contract  between  the  parties,  and  is  not  subject  to 
the  rule  that  excludes  proof  to  alter  or  vary  the  terms  of  an  ex- 
press agreement/^  As  touching  irregular  indorsements,  as  be- 
tween the  maker  or  indorsee  and  indorser,  or  a  surety  and  indorser, 
or  as  between  successive  indorsers,  the  presumption  which  the  face- 
of  the  transaction  imports  may,  as  between  accommodation  parties 
to  the  paper,  be  rebutted,  and  their  true  relations  shown  to  be  that 
of  co-sureties.^" 

In  the  absence  of  agreement  to  the  contrary,  the  parties  to  sl 

8.  Kansas.— Water    Power    Co.    v.    S.)    278,  12   L.   Ed.   152;    Weston  v. 
Brown,  23  Kan.  676.  Chamberlin,  7  Gush.  (Mass.)  404. 

Massachusetts. — Mansfield   v.    Ed-  10.  Clapp  v.  Rice,  13  Gray  (Mass.) 

wards,  136  Mass.  15.  406. 

New  York. — Barry  v.  Rawson,  12  11.  McGlune  v.  Belt,  45  Mo.   174; 

N.  Y.  462.  Dunn  v.  Wade,  23  Mo.  207;  Ross  v. 

North  Carolina.— Robinson  v.  Me-  Espy,  66  Pa.  St.  481. 

Dowell,  130  N.  C.  246,  41  S.  E.  287;  See  also  Narre  v.  Chittenden,  55 

Williams  v.  Glenn,  92  N.  C.  253.  Ind.  462;    Edelon  v.  White,   6  Bush 

Oklahoma.— Stovall    v.     Adair,     9  (Ky.)   408;   Denton  v.  Lytle,  4  Bush. 

Okla.  620,  60  Pae.  282.  (Ky.)  597;   Sturtevant  v.  Randall,  53 

Oregon. — Montgomery  v.  Page,  29  Me.  149;  Easterly  v.  Barber,  66  N.  Y. 

Ore.  320,  44  Pac.  689.  433. 

Tennessee. — Bank    v.    Layne,    101  Compare  Johnson  v.  Ramsey,  43  N. 

Tenn.  45,  46  S.  W.  762.  J.  L.  280. 

Burden  of  proof  on  party  alleging  12.  McNeilly  v.  Patchin,  23  Mo.  43 ; 

he  is  not  co-surety  to  show  it.    Carr  Wade  v.  Creighton,  25  Ore.  455,  36- 

V.  Smith,  129  N.  C.  232,  39  S.  E.  831.  Pac.  289. 

9.  Phillips  V.  Preston,  5  How.   (U. 


239  Rights  of  Co-sureties.  §  211 

promissory  note  are  liable  on  it  according  to  the  legal  effect  of  the 
indorsements;  that  is,  the  maker  is  liable  to  the  payee  and  the  in- 
dorsers,  and  the  payee  to  the  indorsers  which  indorse  to  the  subse- 
quent indorsee.  It  may  be  proved  by  parol  evidence  that  the  rela- 
tions of  the  parties  to  each  other  is  different  from  this  rule ;  that  is, 
that  the  payee  or  indorsee  was  the  real  principal,  or  that  all  the 
parties  were  joint  principals,  or  some  of  them  joint  sureties/* 
There  must  have  been  at  the  time  of  entering  into  such  relations 
a  contract  between  the  accommodation  parties,  either  expressed  or 
implied,  to  become  co-sureties  and  to  share  in  the  loss  which  might 
result  from  the  obligations  assumed,  as  without  it  the  law  fixes 
their  engagement,  and  the  mere  fact  that  they  have  become  parties 
for  accommodation  cannot  change  the  result."  So  parol  evidence 
is  admissible  to  show  that  one  who,  before  delivery,  for  the  accom- 
modation of  the  maker  of  a  promissory  note,  guaranteed  the  pay- 
ment thereof  by  indorsement — is  by  a  separate  verbal  agreement  a 
co-surety  with  one  who  signed  upon  the  face  thereof  as  joint  and 
several  maker,  and  who  was  really  a  co-surety  ;^^  and  so  one  may 
show  by  parol  evidence  that  he  is  a  surety,  and  not  a  co-surety  for 
a  party/® 

§  211.  Statute  of  Limitations. — The  statute  of  limitations  does 
not  begin  to  run  against  a  surety  suing  a  co-surety  for  contribution 
until  the  liability  of  the  surety  is  ascertained ;  that  is,  until  tho 
claim  of  the  principal  creditor  has  been  established  against  him  by 
payment  or  otherwise ;  although  at  the  time  of  the  action  for  con- 
tribution, the  statute  may  have  run,  as  between  the  principal  cred- 
itor and  the  co-surety." 

13.  Sweet  v.  McAlister,  4  Allen  16.  Leeper  v.  Paschal,  70  Mo.  App. 
(Mass.)  354;  Clapp  v.  Rice,  13  Gray    37. 

(Mass.)  406.  See  §  58. 

14.  McI>onald  v.  Magruder,  3  Pet.  17.  Colorado.  —  Buell   v.   Burlin- 
(U.  S.)    470,  476,  7  L.  Ed.  744;   Mc-  game,  11  Colo.  164,  17  Pac.  509. 
Carty  v.  Roots,  21  How.  (U.  S.)  432,  Florida.— May  v.  Vann,  15  Fla.  533. 
437,    16   L.   Ed.   162;    Kirschman   v.  Indiana.— Sexton  v.  Sexton,  35  Ind. 
Conklin,    40    Conn.    81;    McCune    v.  88. 

Belt,  45  Mo.  178;   Stillwell  v.  How,  Maryland. — Hooper  v.  Hooper,  81 

46  Mo.  589;  Hogue  v.  Davis,  8  Gratt.  Md.  155,  174,  31  Atl.  508. 

(Va.)  4.  North  Carolina. — Leak  v.  Coving- 

15.  Montgomery  v.   Page,  29   Ore.  ton,  99  N.  C.  559,  6  S   E.  241. 
320,  44  Pac.  689. 


§  212  Suretyship  and  Guaranty.  240 

This  right  of  contribution  does  not  arise  from  contract  on  the 
original  instrument  of  joint  obligation,  but  from  the  equity  of  one 
who  has  paid  more  than  his  just  share  of  a  joint  debt.^^ 

On  payment  by  a  surety  in  excess  of  his  proportion  of  the  joint 
debt,  he  has  a  right  of  action  for  contribution,  and  the  statute  of 
limitation  begins  to  run  from  the  date  of  such  payment;  if  pay- 
ments be  by  installments,  then  from  the  date  of  the  several  pay- 
ments/* 

§  212.     Bankruptcy  of  Co-surety. — In  England  and  in  several 

of  the  States,  a  discharge  of  a  surety  in  bankruptcy  does  not  re- 
lease him  from  lia^bility  to  contribution  to  his  co-surety.^"  While 
a  discharge  in  bankruptcy  is  a  bar  to  liability  of  a  surety  for  his 
principal's  debt,  it  is  not  to  the  equitable  liability  between  co- 
sureties in  an  action  for  contribution  when  the  payment  was  made 
subsequent  to  the  discharge.^^  But  in  other  States  the  discharge  of 
a  surety  in  bankruptcy  discharges  him  as  to  his  liability  as  to  con- 
tribution to  a  co-surety.^^ 

Oregon. — Durbin  v.  Kuney,  19  Ore.  Michigan. — McClatchle  v.  Dxirham, 

71,  23  Pac.  661.  44  Mich.  435,  7  N.  W.  76. 

Pennsylvania. — Martin   v,   Frantz,  Ohio. — Williams  v.  Rees,  15  Ohio 

127  Pa.  St.  389.  572. 

England. — Wolmershausen  v.  Gul-  Wisconsin. — Bushnell  v.  Bushnell, 

lick    (1893),    2    Ch.    514;    Ex    parte  77  Wis.  435,  46  N.  W.  442. 

Snowden,  17  Ch.  Div.  44 ;   Davies  v.  20.  Byera  v.  Alcorn,  6  111.  App.  39. 

Humphieys,  6  Mees.  &  W.  153.  21.  Kerr     v.     Clark,     11     Humph. 

18.  Camp  V.  Bostwick,  20  Ohio  St.  (Tenn.)  77;  Goss  v.  Gibson,  8 
337.  Humph.     (Tenn.)     197;     Liddell    v. 

19.  lo-wa.— Preston  v.  Gould,  64  Wiswell,  59  Vt.  365,  8  Atl.  680; 
Iowa  44,  19  N.  W.  834;  Wilson  v.  Clements  v.  Langley,  2  Nev.  &  M. 
Crawford,  47  Iowa  460.  269. 

Kentncky.— Wood  v.  Leland,  1  22.  Hays  v.  Ford,  55  Ind.  52;  Miller 
Mete.  387.  v.  Gillespie,  59  Mo.  220;  Hilleburton 

Maryland.— Bullock  v.  Campbell,  9  v.  Carter,  55  Mo.  435 ;  Tobias  t. 
Gill.  182.  Rogers,  13  N.  Y  59;  Hibernian  Bank 

T.  Lacombe,  84  N.  Y.  368. 


^41  SuEETiEs  ON  Bonds  in  Lixjal  Peoceedings.       §  213 


CHAPTER  IX. 

SUEETIES  on  bonds  IN  LEGAL  PROCEEDINGS. 

Section  213.  Discharge  of  Surety  on  Dissolution  of  Attachment. 

214.  Exoneration  of  Sureties  on  Attachment  Bonds. 

215.  Judgment  of  Non-suit. 

216.  Attachment  Lien  Being  Discharged  —  Insolvency  of  Debtor. 

217.  Increase  of  Claim  by  Amendment  of  Declaration. 

218.  Bringing  in  New  Parties  as  Defendants. 

219.  Trespass  by  Officer. 

220.  Delivery  Bond  —  Rights  of  Surety  to  Property. 

221.  Void  Bond. 

222.  Damages. 

223.  The   Surety   is   Concluded   by   the   Judgment   Against   His 

Principal. 

224.  Appeal  Bond  —  Discharge  of  Sureties. 

225.  Appeal  to  a  Special  Court. 

226.  Change  of  Issue  and  Parties. 

227.  Enlargement  of  Claim. 

228.  Agreement  of  Litigants. 

229.  Successive  Appeal  Bonds  are  Cumulatiy©. 

230.  Indemnity  Bonds. 

231.  Liability  on  Indemnity  Bonds. 

232.  Injunction  Bonds  —  Liability  of  Surety. 

233.  When  Suit  May  Be  Brought  for  Breach. 

234.  Liability,  Joint  and  Several. 

235.  What  Law  Governs. 
235a.  Liability  and  Damages. 

236.  Dissolution  by  Series  of  Orders. 

237.  Concluded  by  Judgment  Against  Principal. 

238.  Replevin  Bond. 

239.  Discharge  of  Surety. 

240.  New  Parties  —  Substitution. 

241.  Varying  the  Terms  of  the  Bond. 


§  213.     Discharge  of  Surety  on  Dissolution  of  Attachment. — 

An  attachment  is  a  mere  creation  of  the  statute,  and  its  existence 
and  operation  in  any  case  continues  no  longer  than  the  statute  pro- 
vides it  may.^  Attachment  bonds  which  substantially  comply  with 
the  requirements  of  the  statute  which  authorize  them,  will  be  up- 

1.  Hamilton  v.  Bell,  123  Cal.  93,  5& 
Pac.  758. 

IC 


§§  214,  215  'Suretyship  and  Guaranty.  242 

held  as  valid,  unless  any  other  form  than  that  prescribed  is  actually 
prohibited.  A  mere  informality  will  not  vitiate  them,  and  will  be 
upheld  as  a  comman  law  obligation.^ 

It  is  the  general  rule  that  any  voluntary  obligation  or  agreement, 
entered  into  for  a  valuable  consideration  by  parties  capable  of  con- 
tracting, is  valid  at  common  law,  unless  it  is  repugnant  to  the 
statute  or  contravenes  the  policy  of  the  law.^ 

§  214.  Exoneration  of  Sureties  on  Attachment  Bonds. — Where 
an  attachment  has  been  made  upon  property  which  has  been  re- 
turned to  the  debtor  by  his  giving  a  delivery  bond,  the  delivery 
bond  cannot  be  satisfied  only  by  actual  delivery  of  the  property. 
An  offer  to  deliver  can  only  be  executed  by  bringing  forward  the 
property,  identifying  it  and  tendering  it  to  the  proper  officer.* 
Telling  the  officer  where  the  property  is  and  to  go  and  take  it  is 
not  sufficient,  and  the  sureties  will  not  be  released.^  But  an  officer 
may  waive  delivery.^ 

Where  suit  is  brought  against  two  principals,  the  discontinuance 
as  to  one  will  not  have  the  effect  to  discharge  a  bond  which  the 
obligors  have  jointly  given  to  dissolve  an  attachment.  Nor  is  the 
surety  released.  If  he  had  desired  to  escape  liability  for  a  judg- 
ment against  only  one  of  the  obligors,  he  should  have  given  a  bond 
limited  to  a  judgment  against  all.^ 

§  215.  Judgment  of  Non-Suit. — An  attachment  is  dissolved 
upon  the  recovery  of  a  judgment  of  non-suit  entered  in  favor  of  the 
obligors,  whose  property  has  been  attached,  and  the  sureties  on  the 
bond  given  for  the  release  of  the  attached  property  for  a  redelivery 
thereof  to  the  officer,  are  thereupon  discharged,  and  their  liability 
is  not  revived  or  affected  by  a  reversal  of  the  judgment  of  non- 

2.  Purcell    v.    Steele,    12    111.    93;  5.  Chapline  v.  Robertson,  44  Ark. 

Allerton    v.    Eldridge,    56   Iowa   709,  202. 

10  N.   W.    252;    Endress   v.   Ent,   18  6.  Hansford  v.   Perrin,   6  B.  Mon. 

Kan.  236;    Wight  v.  Keyes,   103   Pa.  (Ky.)    595. 

St.  567.  7.  Poole   v.   Dyer,   123   Mass.   363; 

S.  United  States  v.   Linn,  15   Pet.  Dalton  v.  Barnard,  150  Mass.  473,  2$ 

(U.  S.)  290,  10  L.  Ed.  742;  Pritchett  N.  E.  218. 

V.  People,  1  Gil.   (111.)   525;   Mosher  Compare    Andre   v.    Fitzhugh,    18^ 

V.  Murphy,  121  Mass.  276.  Mich.  93. 

4.  Pogue  V.  Joyner,  7  Ark.  462. 


243       Sureties  on  Bonds  in  Legaj.  Proceedings.    §§  216,  217 

suit  subsequently  rendered  and  judgment  for  the  obligee.^  Where 
an  attachment  is  dissolved,  all  the  proceedings  are  quashed  and  be- 
come of  no  effect,  and  the  delivery  bond  falls,  with  the  writ  of 
which  it  is  the  basis.^ 

§  2x6.  Attachment  Lien  Being  Discharged — Insolvency  of 
Debtor. — When  a  redelivery  bond  is  given  and  the  officer  restores 
the  property  to  the  debtor,  the  lien  is  released.  So  if  there  is  no 
attachment  in  force,  the  lien  being  discharged,  and  the  debtor  goes 
into  bankruptcy  or  insolvency,  this  does  not  release  the  sureties  on 
the  delivery  bond ;  their  liability  is  not  affected  by  the  subsequent 
insolvency  of  their  principal;^"  and  the  sureties'  liability  is  not 
changed  by  a  subsequent  discharge  of  the  principal  debtor  in  bank- 
ruptcy." 

§  217.  Increase  of  Claim  by  Amendment  of  Declaration. — In 
some  of  the  States  peculiar  systems  of  jurisprudence  with  respect 
to  suits  in  attachment,  have  grown  up,^^  and  everything  in  that 
connection  is  held  to  be  stricti  juris;  in  other  iStates,  a  more  liberal 
rule  is  followed,  and  no  local  statute  or  rule  of  local  law  is  in- 
volved, the  power  to  amend  is  the  same  in  attachment  suits  as  in 
other  actions.^' 

Thus,  introducing  additional  items  of  indebtedness  is  conclusive 
as  to  the  identity  of  the  action,  and  the  surety  must  be  considered 

8.  Hamilton  v.  Bell,  123  Cal.  93,  55  12.  United  States.— Tilton  v.  Co- 
Pac.  758.  field,  93  U.  S.  163.  23  L.  Ed.  858. 

9.  Gass  V.  Williams,  46  Ind.  253;  Alabama. — Scott  v.  Macy,  3  Ala. 
Fernaw  v.  Butcher,  113  Pa.  St.  292,  250. 

€  Atl.  67.  Arkansas. — McKnight    v.    Strong, 

See,   also.   Schunak  v.   Art  Metal  25  Ark.  212. 

Novelty  Co.,   84  Conn.  331,  80  Atl.  Connecticut. — Johnson    v.    Hunt- 

290.  ington,  13  Conn.  47. 

10.  Rosenthal  v.  Perkins,  123  Cal.  Iowa, — Wadsworth  v.  Cheney,  13 
240,  55  Pac.  804;   McComb  v.  Allen,  Iowa  576. 

82  N.  Y.  114;  Easton  v.  Ormsby,  18  Missouri. — Wood    v.    Squires,    28 

R.   I.   309.  Mo.  397. 

11.  Bernheimer  v.  Charak,  170  New  York. — Mango  v.  Edwards,  1 
Mass.    179,    49    N.    E.    81;    Gass    v.  E.  D.  Smith  414. 

Smith,  6  Gray   (Mass.)   112.  13.  Chapman    v.    Stucky,    22    111. 

Compare  Wise  Coal  Co.  v.  Colum-  App.  31. 

bia    Zinc    &    Lead    Co.     (Mo.    App.  See     McNeilly     v.     Driscoll,     208 

1911),  138  S.  W.  67.  Mass.  293,  94  N.  E.  273. 


§§  218, 220  Suretyship  and  Guaranty.  244 

to  have  agreed  to  be  liable  for  any  judgment  wbicb  might  be  ren- 
dered in  the  attachment  proceedings." 

But  where  the  rule  of  attachment  is  held  to  be  stricti  juris,  any 
amendment  introducing  new  matter  will  discharge  the  surety. 
Whenever  the  amendment  lets  in  some  new  demand  or  new  cause 
of  action  the  sureties  are  discharged. ^^  But  a  mere  formal  defect 
will  not  discharge  the  surety,  if  corrected,  nor  will  an  added  count 
for  the  same  cause  of  action.^^  And  where  the  liability  is  not  in- 
creased above  the  penalty  in  the  bond,  by  increasing  the  ad 
damnum,  the  surety  is  not  released." 

§  2i8.     Bringing  in  New  Parties  as  Defendants. — The  obligee 

has  no  right  to  bring  in  new  parties  as  defendants  and  discontinue 
as  to  others  already  parties  to  the  suit.  Thus,  if  the  plaintiff  in 
a  suit  upon  an  attachment  bond,  discontinues  as  to  one  defendant 
and  brings  in  a  new  party  as  defendant,  without  notice  to  the 
surety,  the  surety  is  discharged,  although  the  defendant  as  to  whom 
the  action  was  discontinued  was  not  a  party  to  the  bond.^^ 

§  2ig.  Trespass  by  Officer. — A  surety  on  a  delivery  bond  is 
not  liable  for  a  trespass  committed  by  an  officer  in  attaching  prop- 
erty. Thus,  a  surety  in  an  attachment  bond,  when  the  attachment 
has  been  sued  out  for  a  good  cause,  is  not  responsible  for  the  fail- 
ure of  the  officer  to  discharge  his  duty  and  for  a  trespass  committed 
hj  him.^^  Nor  is  a  surety  liable,  as  held  by  some  courts,  for  a 
trespass  of  an  officer  for  seizing  property  on  a  void  bond.^'^ 

§  220.     Delivery  Bond — Rights  of  Surety  as  to  Property. — As 

between  the  surety  and  the  owner  of  the  property  after  redelivery, 
the  surety  has  the  right  to  see  that  the  property  shall  not  be  so  dis- 

14.  Freeman  v.  Creech,  112  Mass.  101;  Tucker  v.  White,  5  Allen 
180;  Prince  v.  Clarli,  127  Mass.  599;     (Mass.)  323. 

WilkSi  V.  Adcock,  8  Term  R.  27.  19.  Offterdinger    v.    Ford,    92    Va. 

15.  Kellogg  V.  Kimball,  142  Mass.    636,  24  S.  E.  246. 

124,  7  N.  E.  728.  20.  McDonald  v.  Felt,  49  Cal.  354; 

16.  Doran  v.  Cohen,  147  Mass.  342,  Dawson  v.  Baum,  3  "Wash.  Ter.  464. 
17  N.  E.  647.  Compare     Lovejoy     v.     Murry,     3 

17.  Townsend  Nat.  Bank  v.  Jones,  Wall.  1,  18  L.  Ed.  129;  Wetzell  v. 
151  Mass.  454,  24  N.  E.  593;  Martin  Waters,  18  Mo.  396;  Herr-'ng  v.  Hop- 
V.  Moore,  2  Strange  922.  pock,  15  N.  Y.  409;  Ford  v.  Williams, 

18.  Richards  v.   Storer,  114  Mass.  13  N.  Y.  584. 


245  SuEETiEs  ON  Bonds  in  Legal  Proceedings.       §  221 

posed  of,  that  delivery  cannot  be  made  according  to  the  terms  of 
the  bond.^^  Because  the  surety  is  not  bound  to  wait  upon  the  cred- 
itor, nor  is  his  right  in  this  respect  contingent,  upon  his  demand, 
upon  the  creditor  to  ascertain  his  lien,  and  the  latter's  refusal  to 
do  so.  Neither  has  the  legal  ti'tle,  but  both  a  general  lien,  and 
therefore  their  only  recourse  is  in  a  court  of  equity,  of  which  either 
can  take  advantage.^^ 

In  some  States,  however,  a  delivery  bond  is  given  in  the  alterna- 
tive, conditioned  for  the  delivery  of  the  chattels  or  for  the  pay- 
ment of  their  value,  in  case  the  attaching  creditor  gains  his  suit. 
Then  the  alternative  condition  does  not  discharge  the  lien  on  the 
property  from  the  attachment  lien;  but  the  custody  of  the  owner 
is  substituted  for  that  of  the  officer  only.^ 

But  as  to  third  parties,  the  release  of  the  attached  property  hav- 
ing been  procured  by  giving  a  delivery  bond,  does  not  by  reason  of 
their  suretyship  entitle  the  sureties  to  the  possession  of  the  prop- 
erty.2* 


§  221.     Void  Bond. — If  there  is  no  authority  in  law  for  the 

attachment,  there  can  be  none  for  taking  the  bond.  If  the  attach- 
ment itself  is  illegal  and  therefore  void,  so  also  must  be  a  bond 
which  takes  its  place.^"  An  action  cannot  be  maintained  on  a  bond 
given  to  obtain  the  liberation  of  property  illegally  seized  by  an 
officer,  and  the  sureties  on  the  bond  therefore  are  not  liable.^^ 

21.  James  v.  Kennedy,   10  Heisk.  22.  Dechard  v.  Edwards,  2  Sneed 

(Tenn.)  607.  (Tenn.)   93. 

Property  destroyed  by  fire.     The  23.  Stevenson  v.  Palmer,  14  Colo, 

condition  of  a  delivery  bond  being  565,  24  Pac.  5;   Loughlin  v.  Fergu- 

to  return  or  deliver  the  property  to  son,  6  Dana  (Ky.)  111. 

the   plaintiff,    if   he    recovers   judg-  24.  Gass  v.  Williams,  46  Ind.  253; 

ment  therefor,  in  as  good  condition  Gray   v.   Perkins,   12   Smedes   &  M. 

as  it  was  when  the  action  was  com-  (Miss.)  622. 

menced,     authorizes    the     court     to  25.  Pacific    Nat.    Bank   v.    Mixter, 

find  the  value  of  the  property  as  it  124  U.  S.  721,  8  S.  Ct.  718,  31  L.  Ed. 

was  at  the  time  of  the  commence-  567. 

ment  of  the  action  the  destruction  26.  Homan     v.     Brinckerhoof,     1 
of   the    property    by    fire    does    not  Denio   (N.  Y.)   184;   Cadwell  v.  Col- 
release    the    sureties.      Richards    v.  gate,  7  Barb.  (N.  Y.)  253. 
Hellen  &   Son    (Iowa_  1911),  133  N. 
W.  393. 


§§  222,  223  Suretyship  and  Guaranty.  246 

§  222.  Damages. — The  obligation  of  a  surety  in  an  undertak- 
ing in  attachment  is  to  pay  the  obligee  thereof  all  damages  sus- 
tained by  reason  of  the  attachment,  if  the  order  be  wrongfully  ob- 
tained "  which  may  include  the  whole  of  the  property  ^*  or  the 
costs  and  expenses  to  vacate  the  attachment  including  attorneys' 
fees.^^  And  when  the  attachment  is  discharged  as  wrongful  the 
right  of  action  to  recover  against  the  surety  accrues.^"  But  if  the 
property  attached  is  not  the  defendant's,  he  can  recover  no  dam- 
ages,^^  and  of  course  the  surety  on  the  bond  is  not  liable  to  him. 
But  if  the  defendant  has  been  injured,  then  he  has  his  remedy 
in  an  action  of  tort  against  the  officer,  and  not  against  the  sureties 
on  the  attachment  bond.^^ 

Upon  the  question  of  the  liability  of  the  surety  the  good  faith 
of  the  plaintiff  is  held  to  be  immaterial.^^ 


§  223.  The  Surety  is  Concluded  by  the  Judgment  Against  His 
Principal. — In  the  absence  of  fraud  or  collusion,  a  judgment 
against  the  principal  on  the  bond  binds  the  sureties  and  is  deter- 
minative for  all  purposes  as  to  the  value  of  the  property  taken  by 
^  delivery  bond,  and  conclusive  as  to  the  sureties.^*     As  to  the 

27.  Hopewell  v.  McGrew,  50  Neb.  The  liability  of  the  surety  may  be 

"789,  70  N.  W.  397.  tried  out  in  the  original   action  in 

A    breach    does    not    occur    until  which  the  attachment  issued,  where 

judgment     and     failure     to     satisfy  the    statute    so    permits.      Deposit 

same.     Deposit  Bank  v.  Thomason,  Bank  v.  Thomason,  23  Ky.  Law  Rep. 

23  Ky.  Law.  Rep.  1957,  66  S.  W.  604.  1957,  66   S.  W.  604. 

A  plaintiff  bringing  suit  on  a  sec-  Must  be  notice  to  surety  of  pro- 

ond  bond  may   be  held  to  estoppel  ceeding  in  order  to  obtain  judgment 

to    sue    on    first    bond.      Hessee    v.  on  bond.  Thompson  v.  Arnett,  23  Ky. 

Rowley.  139  Cal.  410,  73  Pac.  156.  Law.  Rep.  1082,  64  S.  W.  735. 

28.  Files  v.  Davis  (U.  S.  C.  C),  119  31.  Tebo  v.  Betancourt,  73  Miss. 
Fed.   1002.  868,  19  So.  833. 

29.  Tyng  v.  American  Surety  Co.,  32.  Pinson  v.  Kirsh,  46  Tex.  29. 
1"1  N.  Y.  166,  66  N.  E.  668,  affirming  33.  Anvil  Gold  Mining  Co.  v.  Hox- 
€9  App.  Div.  137,  74  N.  Y.  Supp.  502.  sie,  125  Fed.  724,  60  C.  C.  A.  492. 

Compare  Braunstein  v.  American  34.  Jaffray  v.  Smith,  106  Ala.  112, 

Bonding  &  Trust  Co.,  84  N.  Y.  Supp.  17  So.  218;  Triest  v.  Enslen,  106  Ala. 

982,  as  to  counsel  fees.  ISO,  17  So.  356;  Charles  v.  Hoskins, 

30.  Miller   v.   Baker,   25   Ky.   Law  14  Iowa  471. 

Rep.  1858,  79  S.  W.  187.  See    §    65    herein    as   to   effect    of 

judgment  on  surety. 


247  Sureties  on  Bond  in  Legal  Proceedings.         §  224 

sureties,  the  matter  is  res  adjudicata,  and  cannot  be  set  aside,  ex- 
cept for  fraud,  accident  or  mistake.^^ 

§  224.  Appeal  Bond — Discharge  of  Sureties. — The  liabiHty  of 
sureties  being  contingent,  anything  legally  satisfying  the  judgment 
appealed  from  as  against  the  principal  will  discharge  the  sureties ; 
whatever  discharges  the  judgment  discharges  also  the  liability  of 
the  obligors  upon  the  bond.^^ 

But  a  levy  of  execution  upon  real  property  of  sufficient  value  to 
satisfy  the  judgment  does  not,  like  the  levy  of  an  execution  on  per- 
sonal property,  operate,  while  the  levy  is  undisposed  of,  as  such  a 
satisfaction  of  the  judgment  as  will  bar  an  attempt  to  enforce  its 
collection  in  any  other  manner." 

A  surety  is  released  on  appeal  bond  when  the  principal  debtor 
is  discharged  in  bankruptcy,  and  no  final  judgment  is  rendered 
against  the  principal  ;^^  and  the  surety  is  discharged  on  reversal 
of  the  judgment,^^  provided  the  reversal  is  not  set  aside  on  further 
appeal ;  if  it  is  set  aside,  then  the  surety's  liability  is  revived,  and 
he  is  responsible.^'*  When  the  judgment  on  appeal  is  affirmed,  the 
liability  is  fixed  by  the  legal  import  of  the  conditions  in  the  bond.'*^ 

35,  Fusz  V.  Trager,  39  La.  Ann.  tional  Surety  Co.,  144  App.  Div.  (N. 
292;    Dickerson   v.   Heman,   9   Daly    Y.)  509,  129  N.  Y.  Supp.  228. 

(N.  Y.)   298;  Bergen  v.  Williams,  4  Terms  of  bond  to  be  strictly  con- 
McLean,  125.  strued  and  not  extended  by  impli- 

36.  Illinois.— Stelle  v.  Lovejoy,  125  cation.  Haberer  v.  Hansen,  148  111. 
111.  352,  17  N.  E.  711;  Cook  v.  King,  At)?.  83. 

7  111.  App.  549.  37.  Gold    v.    Johnson,    59    111.    63; 

Indiana. — Green  v.  Raftes,  67  Ind.  Herrick  v.  Swartwout,  72  111.  340. 
49.  38.  Odell  v.  Woothen,  38  Ga.  224; 

Louisiana. — Ellis  v.  Fisher,  10  La.  Martin     v.     Kilbourn,     12      Heisk 

Ann.  479.  (Tenn.)  331. 

Ohio.— Cass  v.  Adams,  3  Ohio  223.       39.  Rothlinger  v.  Wonderly,  66  111. 

Pennsylvania.— Noble   v.   Oil   Co.,  390;   Martin  v.  Hodge   (S.  C.  1910), 

€9  Pa.  St.  407.  69  S.  C.  225. 

See  also  cases  cited  in  this  section       40.  Robinson  v.  Plimpton,  25  N.  Y. 

post.  484. 

A   surety   on  an   appeal   bond  is       41.  Arkansas. — Love       v.       Cahn, 

not  a  ''fiduciary"  within  the  mean-  (Ark.   1909),  124  S.  W.  259. 
ing  of  the  New  York  Code  of  Civil        Illinois. — Stall  v.  Hance,  62  111.  52. 
Procedure,    §    812,    permitting   such        Indiana. — Graeter  v.   DeWolf,  ll^i 

a  person  to  apply  for  a  discharge  Ind.  1,  13  N.  E.  111. 
from  his  undertaking.    Allen  v.  Na- 


224 


•Suretyship  and  Guaranty. 


248- 


Where  the  bond  is  conditioned  "  to  satisfy  and  perform  the  judg- 
ment appealed  from  in  cdse  it  shall  be  affirmed  "  the  surety  is 
liable  only  for  the  amount  of  the  same  though  the  recovery  is  in 
excess  thereof."^  And  generally  the  liability  of  the  sureties  is 
measured  by  that  of  the  principal.''^  And  the  sureties  may  avail 
themselves  of  any  defense  available  to  their  principal."  The  ex- 
tent of  recovery  generally  is  the  judgment  and  interest,  with  costs, 
unless  the  bond  provides  otherwise/^ 

On  a  statutory  appeal  bond  from  a  judgment  overruling  a  mo- 
tion to  set  aside  and  vacate  an  order  appointing  a  receiver,  the 
surety  is  only  liable  for  the  costs  in  the  case  presented  by  such  mo- 
tion and  not  for  those  of  the  entire  suit,  the  appeal  being  only  from 
the  order  or  judgment  upon  the  motion/®    But  the  sureties  are  not 


Iowa. — Noyes  v.  Granger,  51  Iowa 
227,  1  N.  W.  519. 

Michigan.— Kelly  v.  Gaukler,  164 
Mich.  519,  129  N.  W.  703,  17  Det.  L. 
N.  112. 

Missouri. — Campbell  v.  Harring- 
ton, 93  Mo.  App.  315. 

Montana. — Sullivan  v.  Fried,  42 
Mont.  335,  112  Pac.  535. 

Final  jndgment  fixes  the  liability 
of  the  surety.  Barela  v.  Tootle,  29 
Colo.  55,  66  Pac.  899. 

A  bond  conditioned  to  pay  a  cer- 
tain sum  limits  recovery  to  such 
sum.  Ehrlich  v.  Ringler,  65  Misc. 
R.  (N.  Y.)  15,  119  N.  Y.  Supp.  344. 

Bond  to  pay  a  "  valid  "  judgment. 
Surety  held  liable  where  judgment 
affirmed.  Cook  v.  Spence  (Mo.  App. 
1909),  122  S.  W.  340. 

Where  a  bond  is  conditioned  that 
plaintiff  in  error  will  "  abide  the 
judgment  if  the  same  shall  be  af- 
firmed and  pay  the  costs' "  there  is 
a  breach  in  case  of  nonpayment  of 
the  judgment,  when  affirmed.  Har- 
ris V.  Kansas  Elevator  Co.,  66  Kan. 
372,  71  Pac.  804. 

42,  Barela  v.  Toole,  29  Colo.  55, 
66  Pac.  899. 


43.  Sharon  v.  Sharon,  84  Cal.  433, 
23  Pac.  1102;  Parnell  v.  Hancock, 
48  Cal.  452. 

Nonpayment  of  damages  for 
which  a  judgment  is  affirmed  is  a 
breach  of  an  appeal  bond.  Sim- 
mons V.  Sharpe  (Ala.  1911),  56  So. 
849. 

44.  Sharon  v.  Sharon,  84  Cal.  433, 
23  Pac.  1102. 

An  insufficient  statutory  appeal 
bond  may  be  sued  on  as  a  common 
law  bond.  Simmons  v.  Sharpe 
(Ala.  1911),  56  So.  849;  Examine 
Summit  v.  Coletta  (N.  J.  L.  1911), 
78  Atl.  1047. 

45.  Stelle  v.  Lovejoy,  125  111.  352, 
17  N.  E.  711;  Campbell  v.  Harring- 
ton, 93  Mo.  App.  315. 

In  case  of  an  appeal  from  a  fore- 
closure decree  where  a  bond  is 
given  conditioned  to  pay  interest, 
the  surety  is  liable  where  a  defic- 
iency decree  for  interest  is  entered. 
Monson  v.  Meyer,  195  111.  142,  62  N. 
E.  827,  affirming  93  111.  App.  94. 

46.  American  Surety  Co.  of  New 
York  V.  Koen,  49  Tex.  Civ.  App.  98, 
107,  S.  W.  938. 


249 


Sureties  on  Bond  in  Legal  Proceedings. 


§  225 


liable  for  attorney  fees  ;*^  nor  for  rents  and  profits  pending  appeal 
affecting  real  estate,  unless  the  statute  ^*  or  the  bond  so  provides/^ 

A  sufficient  tender  of  performance  of  the  judgment  by  either  the 
principal  or  sureties  on  the  appeal  bond  discharges  the  sureties, 
whether  accepted  or  not.^**  But  though  a  judge  may  have  no  right 
to  require  a  bond  conditoned  to  pay  for  delay  occasioned  by  a  writ 
of  error  yet  where  it  contains  such  a  condition  it  is  held  that  the 
surety  will  be  liable  therefor.^^  The  general  rule  also  applies  that 
the  liability  of  a  surety  on  an  appeal  bond  is  not  to  be  extended 
beyond  the  terms  of  the  bond.^^ 

§  225.  Appeal  to  a  Special  Court. — A  surety  is  discharged  on 
the  appeal  bond,  if  the  judgment  is  affirmed  by  a  court  other  than 
that  mentioned  in  the  bond."^  Thus,  where  the  bond  specifies  a  par- 
ticular court,  and  when  it  comes  before  that  court  a  change  of 
venue  is  taken,  the  sureties  are  discharged.^^  But  if  the  bond  is 
conditioned  generally  for  the  payment  of  the  judgment  if  affirmed 
on  appeal,  then  they  are  liable  to  whatever  court  the  appeal  i* 
taken,  even  if  there  are  successive  appeals.^^ 


47.  Noll  V.  Smith,  68  Ind.  168. 

On  a  bond  superseding  an  order 
to  sell  real  estate  may  be  liability 
for  rents  and  profits  while  pur- 
chaser is  kept  out  of  possession. 
Brown  v.  Northwestern  Mutual  Life 
Ins.  Co.,  119  Fed.  148,  55  C.  C.  A. 
654. 

See  also  German  Savings  &  Loan 
Soc.  V.  Kern,  42  Oreg.  532,  70  Pac. 
709. 

48.  Stultz  V.  Zahn,  117  Ind.  277, 
20  N.  E.  154;  0pp.  v.  Ward,  125  Ind. 
241,  24  N.  E.  974. 

49.  Carmack  v.  Drew,  32  Wash. 
236,  73  Pac.  377. 

50.  California. — Sharp  v.  Miller, 
57  Cal.  415. 

Indiana. — Spingeon  v.  Smith,  114 
Ind.  453,  17  N.  E.  105. 

STassachnsetts. — Hampshire  Bank 
T.  Pillings,  17  Pick.  87. 

Michigan. — Seans  v.  Van  Dusen, 
25  Mich.  351. 


Vermont. — Joslyn  v.  Eastman,  46 
Vt.  258. 

As  to  tender  of  payment  as  dis- 
charge of  surety  see  §  139  herein. 

51.  Waycross  Air  Line  Co.  v.  Of- 
ferman  &  W.  R.  Co.,  114  Ga.  727,  40 
S.  E.  728. 

52.  Griswold  v.  Hazels,  62  Neb. 
888,  87  N.  W.  1047. 

53.  Sharp  v.  Bedell,  10  111.  88; 
Hinckley  v.  Kreitz,  58  N.  Y.  583; 
Smith  V.  Huesman,  30  Ohio  St.  662. 

But  see  Barela  v.  Tootle,  29  Colo. 
55,  66  Pac.  899. 

Though  to  court  to  which  no  law- 
ful appeal  lies  surety  may  be  liable. 
McVey  v.  Peddle,  69  Neb.  525,  96  N. 
W.  166. 

54.  Sharp  v.  Bedell,  10  111.  88. 

55.  Robinson  v.  Plimpton,  25  N.  Y. 
484;  Smith  t.  Crouse,  24  Barb.  (N. 
Y.)  433. 


§§  226, 227  iSuRETYSHip  and  Guaranty.  250 

§  226.     Change  of  Issue  and  Parties. — Sureties  on  appeal  are 

discharged  by  any  material  change  in  the  issue. ^^  And  so  if  the 
parties  are  changed  the  sureties  are  discharged,"  as  where  the 
name  of  one  of  the  joint  plaintiffs  on  appeal  is  stricken  out  of  the 
writ  of  error  by  order  of  the  court.^^  But  if  the  appeal  is  affirmed 
as  to  one  of  the  defendants,  and  not  as  to  the  other,  the  sureties 
are  still  liable.^*  Nor  is  the  surety  discharged  by  the  death  of  the 
principal  and  substitution  of  the  principal's  administrator.*" 
When  an  appeal  bond  is  given  by  several  appellants,  the  undertak- 
ing is  several  as  to  each  of  the  principals,  and  the  sureties  are 
liable  accordingly,  although  the  judgment  is  rendered  against  some, 
and  not  all,  of  their  principals  on  appeal.*^  Unless  provided  other- 
wise by  statute,  the  contract  of  two  or  more  sureties  on  the  same 
appeal  is  joint  only,  and  not  joint  and  several  or  several,^^  so  the 
discharge  of  one  discharges  all.*^ 

And  so  where  the  name  of  one  of  the  joint  plaintiffs  in  error  is 
stricken  out  of  the  writ  of  error  by  order  of  the  court  the  sureties 
are  discharged." 

§  227.  Enlargement  of  Claim. — The  increase  of  the  claim  with- 
out the  sureties'  consent  destroys  their  liability  where  the  bond  is 
for  a  definite  amount,  and  the  enlargement  exceeds  this  amount.®^ 
But  if  the  bond  is  to  secure  any  judgment  which  may  be  rendered 
without  regard  to  a  specified  amount,  an  increase  in  the  demand 
in  the  appellate  court  will  not  release  the  sureties."    Some  courts 

56.  Langley  v.  Adams,  40  Me.  125;  Warner  v.  Cameron,  64  Mich.  185, 
Evers  v.  Sager,  28  Mich.  47;  Post  v.  31  N.  W.  42;  McFarlane  v.  Howell, 
Shafer,  63  Mich.  85,  29  N.  W.  519;    91  Tex.  218,  42  S.  W.  853. 

Sage  V.  Strong,  40  Wis.  575.  62.  Wood   v.   Fisk,   63   N.    Y.   249; 

57.  Thomas  v.  Cole,  10  Heisk.  Pickersgill  v.  Lahens,  15  Wall.  (U. 
(Tenn.)  4J.1.  S.)    140,  21  L.  Ed.  119. 

58.  Tarner  v.  Nance.  5  Ala.  718.  63.  Gross   v.    Bouton,   9   Daly    (N. 

59.  Ives  V.  Hulce,  17  111.  App.  135;  Y.)    25. 

Hood  V.  Mathis,  21  Nev.  308;   Alber  65.  Tarner  v.   Hance,   5   Ala.   718. 

V.   Froehlich,  39   Ohio  St.   245;    Mc-  66.  Willis     v.     Crooker,     1     Pick. 

Farlane  v.  Howell,  91  Tex.  218,  42  (Mass.)  204;  Sage  v.  Strong,  40  Wis. 

S.   W.  853.  575. 

60.  Bell  V.  Walker,  54  Neb.  222,  74  67.  Masser  v.  Strickland,  17  S.  & 
N.  W.  617;  Piercy  v.  Piercy,  1  Ired.  R.  (Pa.)  354;  Hare  v.  Marsh,  61  Wis. 
Eq.  (N.  C.)  214.  435,  21  N.  W.  267;  Dressier  v.  Davis. 

61.  Ives  V.  Hulce,  17  111.  App.  35;  12  Wis.  58. 


251        iSuRETiES  ON  Bond  in  Legal  Proceedings.    §§  2i28,  229 

hold  that  there  is  no  release  of  the  surety  by  reason  of  an  increase 
of  liability  by  a  subsequent  legislative  enactment. ^^ 

§  228.  Agreement  of  Litigants. — Sureties  are  discharged  by 
any  agreement  of  the  litigants  by  which  the  obligation  of  the 
judgment  appealed  from  is  varied,  or  the  time  of  payment  is  sus- 
pended.^^ Thus,  where  the  parties  agreed  that  the  judgment  might 
be  paid  in  installments,  after  the  appeal  bond  was  signed,  and  the 
debtor  failed  to  pay  as  agreed,  the  sureties  are  discharged.^"  And 
80  where  the  litigants  consent  to  an  affirmance  of  the  judgment  on 
appeal,  the  sureties  are  discharged  f^  and  so  if,  by  consent  of  the 
parties,  judgment  is  taken  against  a  portion  only  of  the  appel- 
lants f^  and  so  where  the  creditor  suspends  execution  on  the  judg- 
ment without  consent  of  sureties.^^ 

Where  the  undertaking  of  a  surety  is  to  pay  any  judgment  ren- 
dered against  his  principal,  he  is  liable,  notwithstanding  another 
maker  of  the  note  sued  on  was  made  a  party  in  the  appellate  court 
and  judgment  rendered  against  both  makers.^*  And  a  non-suit  may 
be  set  aside  by  agreement  on  appeal  without  discharging  the 
fiureties.^^ 

§     229.     Successive    Appeal     Bonds     are     Cumulative. — The 

sureties  on  an  appeal  bond  to  an  intermediate  court  are  not  dis- 
charged by  a  second  appeal  with  a  new  bond  to  a  higher  court.'* 
Thus,  a  surety  on  an  appeal  bond  to  an  appellate  court  is  not  re- 
leased by  the  execution  and  approval  of  a  bond  with  a  new  surety 

68.  White  v.  Prigmon,  29  Ark.  208;  73.  Wingate  v.  Wilson,  53  Ind.  ?:. 
State  V.  Swinney,  60  Miss.  39;  Hor-  74.  Helt  v.  Whittier,  31  Ohio  St. 
nrr  v.  Lyman,  4  Keyes   (N.  Y.)   237.    475,  distinguishing  Lang  v.  Pike,  27 

Compare   Davis  v.   People,   1   Gil.  Ohio  St.  498. 
(111.)  409.  See  also  Hood  v.  Mathis,  21  Mo. 

69.  Comegys  v.  Cox,  1  Stew.  (Ala.)  3C8;  Johnson  v.  Reed,  47  Neb.  322, 
262;  Gardner  v.  Watson.  13  111.  347;  66  N.  W.  405;  Potter  v.  Van  Vranken, 
Wingate  v.  Wilson,  53  Ind.  78.  36  N.  Y.  629. 

70.  Leonard  v.  Gibson,  6  111.  App.  75.  Bailey  v.  Rosenthal,  56  Mo. 
503.  385. 

71.  Johnson  v.  Flint,  34  Ala.  673.       76.  Chester   v.   Broderick,    131    N. 
Compare  Chase  v.  Beraud,  29  Cal.    N.  549,  30  N.  E.  507. 

138;  Ammons  v.  Whitehead,  31  Miss.  As  to  liability  to  contribute  on 
99-  successive  bonds  see  §  209  herein. 

72.  Shimer  v.  Hightshue,  7  Blackf. 
(Ind.)   238. 


§§  230, 231  Suretyship  and  Guaranty.  252 

for  further  appeal  of  the  cause  to  the  higher  court,  the  bonds  be- 
ing in  such  case  cumulative  securities." 

Another  question  comes  up  under  this  head,  as  to  the  relative 
rights  of  the  two  sets  of  sureties.  As  between  different  sets  of 
sureties  who  undertake  to  secure  the  same  debt,  although  in  dif- 
ferent stages  of  legal  proceedings,  the  primary  liability  rests  upon 
the  later  set,  and  if  they  be  discharged  by  the  creditor,  the  first 
sureties  will  thereby  also  be  discharged,^^  because  it  deprives  them 
of  a  remedy  over  to  which  they  would  otherwise  have  been  en- 
titled.^^ 

§  230.  Indemnity  Bonds. — If  the  indemnity  bond  provides 
to  save  the  officer  harmless  from  any  damages  by  a  levy  and  sale 
of  the  property,  there  is  no  breach  of  condition  until  the  officer  has 
suffered  actual  damages  by  the  payment  of  a  claim  against  him.^ 
If  the  condition  of  the  bond  imports  an  undertaking  to  save  the 
officer  harmless  from  any  liability,  the  officer  has  the  right  of  ac- 
tion upon  the  bond  as  soon  as  a  liability  is  incurred,  without  the 
necessity  of  showing  any  payment.^* 

§  231.  Liability  on  Indemnity  Bonds. — It  is  the  general  rule, 
that  if  a  judgment  creditor  gives  a  bond  of  indemnity  to  the  officer 
to  induce  him  to  levy  upon  certain  property  and  sell  it,  in  the 
event  of  such  property  not  being  subject  to  execution,  he  becomes 
a  joint  trespasser  with  the  officer  and  liable  for  the  tort  f^  and  so 
are  the  sureties  upon  such  bond  in  trespass,^  because  all  persons 
who  direct  or  request  another  to  do  a  trespass  are  liable  as  co-tres- 
passers, and  a  bond  of  indemnity  is  virtually  a  request  to  trespass 
when  the  seizing  of  the  property  is  unlawful.^* 

However,  in  some  iStates  it  is  held  that  where  the  surety  does 

77.  Becker  v.  People,  164  111.  267,  458;  Herring  v.  Hoppock,  15  N.  Y. 
45  N.  E.  500.  409;  Lovejoy  v.  Murray,  3  Wall.  (U. 

78.  Culliford  v.  Walser,  158  N.  Y.   S.)  1,  18  L.  Ed.  129. 

65,  52  N.  E.  648.  83.  Screws  v.  Watson,  48  Ala.  628; 

79.  Hinckley  v.  Kreitz,  58  N.  Y.  Wetzell  v.  Waters,  18  Mo.  396;  Ford 
583.  V.  Williams,  13  N.  Y.  584;    Herring 

80.  Gilbert  v.  Wiman,  1  N.  Y.  550.    v.  Hoppock,  15  N.  Y.  409. 

81.  White  V.  French,  15  Gray  84.  Herring  v.  Hoppock,  15  N.  Y. 
(Mass.)  339.  409. 

82.  Knight    v.    Nelson,    117  Mass. 


^53 


Sureties  on  Bond  in  Legal  Proceedings. 


2. '32 


not  actually  participate  in  the  unlawful  proceeding  he  cannot  be 
held  liable  for  the  officer's  tort.*^  The  surety  on  such  a  bond  is 
bound  only  in  accordance  with  the  terms  of  his  obligation  and  his 
liability  cannot  be  extended  beyond  them  by  implication  or  con- 
struction.*® 


§  232.  Injunction  Bonds — Liability  of  Surety. — The  liability 
of  a  surety  on  an  injunction  bond  must  be  strictly  construed,  and 
he  cannot  be  held  liable  beyond  the  precise  terms  of  his  undertak- 
ing.*^ iSo  he  is  not  liable  for  the  unlawful  acts  of  his  principal 
which  are  done,  save  the  damages  which  naturally  result  from  the 
legal  effect  of  the  writ  of  injunction.**  The  surety  will  be  held 
only  liable  to  the  precise  terms  of  his  bond.     Thus,  where  a  judg- 


85.  McDonald  v.  Felt,  49  Cal.  354; 
Offterdinger  v.  Ford,  92  Va.  636,  24 
S.  E.  246 ;  Dawson  v.  Baum,  3  Wash. 
Ter.  464. 

86.  American  Surety  Co.  v.  Boyle, 
65  Ohio  St.  486,  63  N.  E.  73. 

87.  Georgia,— Webb  v.  Pope,  118 
Ga.  627,  45  S.  E.  478. 

Illinois. — Ovington  v.  Smith,  78 
111.  250. 

Missouri. — Lewis  v.  Leathey,  14 
Mo.  App.  564. 

New  York. — American  Exch.  Nat. 
Bank  v.  Goubert,  67  Misc.  R.  602, 
124  N.  Y.  Supp.  817,  affd.  130  N.  Y. 
Supp.  1103. 

Ohio.— Hall  V.  Williamson,  9 
Ohio  St.  17. 

West  Virginia. — Ballard  v.  Logan 
(1911),  76  S.  E.  558. 

As  to  extent  of  surety's  contract 
generally  see  §§  66  et  seq. 

Snch  damages  as  may  be 
**  awarded."  Under  the  laws  of  the 
United  States  as  expounded  by  its 
courts  the  condition  of  a  bond  for 
payment  of  such  damages  as  may 
te  awarded  by  reason  of  the  Issu- 
ance or  continuance  of  an  injunc- 
tion is  not  broken  so  as  to  make  the 


surety  liable  until  the  amount  of 
the  damages  is  assessed  and  deter- 
mined and  the  principal  obligor  has 
refused  to  pay  the  amount  awarded. 
Umbreit  v.  American  Bonding  Co., 
144  Wis.  611,  129  N.  W.  789. 

88.  Cummings  v.  Mugge,  94  111. 
186;  Albers  Commission  Co.  v. 
Spence  (Mo.  1911),  139  S.  W.  321. 

Injunction  against  signing  con- 
tract for  school  building.  Where  a 
board  of  school  directors  had  ac- 
cepted a  bid  for  the  erection  of  a 
school  building  and  the  contract 
with  plans  and  specifications  had 
been  prepared  and  signed  by  the 
contractor,  but  before  the  officers 
of  the  board  had  signed  it  an  in- 
junction was  issued  restraining 
further  action,  and  subsequently  on 
the  injunction  being  dissolved,  the 
contract  was  signed  and  the  build- 
ing erected,  the  complainant  at 
whose  instance  the  injunction  was 
issued  was  held  liable  on  his  injunc- 
tion bond  for  the  loss  sustained  by 
the  contractor  from  the  delay  re- 
sulting from  the  injunction.  Nether 
Township  School  District  v.  Mercur, 
46   Pa.  Super.  Ct.  470. 


§  233  Suretyship  and  Guar^vnty.  254 

ment  was  stated  in  the  bond  to  have  been  recovered  at  a  certain 
term  of  court,  when  in  fact  it  was  at  another  term  in  the  same 
year,  the  surety  will  be  discharged.^'  He  cannot  be  held  beyond 
the  terms  of  his  contract,  and  if  these  terms  are  varied  without  his 
consent  he  will  be  discharged.^''  But  if  the  appellant  obtains  an  in- 
junction restraining  the  collection  of  the  judgment  affirmed  on  ap- 
peal and  without  the  consent  of  the  sureties,  this  does  not  discharge 
them.'* 

§  233.  When  Suit  May  Be  Brought  for  Breach. — A  surety  on 
an  injunction  bond  is  entitled  to  have  the  case  against  his  principal 
tried  according  to  the  form  of  law,  and  a  final  decree  entered 
against  him  in  court.  Until  there  is  such  a  final  decree  or  deter- 
mination of  the  equity  of  the  suit,  the  surety  is  not  liable.'^  And 
there  must  be  a  decision  upon  the  merits.  So  a  surety  is  discharged 
upon  an  injunction  bond,  by  an  agreement  entered  into,  without 
his  consent,  by  the  parties  litigant,  to  have  the  equity  suit  tried 
and  determined  in  an  irregular  way,  after  the  term  of  the  court 
had  ended.'^  If  there  be  a  corrupt  arrangement  between  the  cred- 
itor and  princpal  by  which  the  injunction  is  dismissed,  the  surety 
is  discharged  f*  but  in  the  absence  of  fraud,  the  dismissal  of  the  in- 
junction by  agreement  will  not  discharge  the  surety.'^ 

If  an  agreement  is  made  between  the  parties,  but  the  surety's 
liability  is  not  changed,  he  is  not  discharged.  Thus,  an  agreement 
of  the  parties  which  the  court  carries  out,  which  is  in  effect  a  par- 
tial dissolution,  the  surety's  liability  not  being  increased,  does  not 
release  him.'^    So  if  an  order  by  stipulation  modifying  an  injunc- 

89.  Morgan   v.  Blackiston,  5  Har.  New  York. — Loomis  v.  Brown,  16 
&  J.  (Md.)  61.  Barb.  325. 

90.  Hall  V.  Williamson,  9  Ohio  St.  Pennsylvania. — Large     v.     Steer, 
17.  121  Pa.  St.  30,  15  Atl.  490. 

91.  Hodges  V.  Gervin,  6  Ala.  478.  Securities    are    entitled    to    their 

92.  Illinois. — Mix   v.   Vail,   86    111.  day  in  court.    Terry  v.  Robbins  (U, 
40.  S.  C.  C),  122  Fed.  725. 

Iowa. — Monroe  v.  Gilford,  35  Iowa  93.  Baker  v.  Frellson,  32  La.  Ann. 

646.  322. 

Louisiana.— Baker  v.  Frellson,  32  94.  Boynton  v.  Robb,  22  111.  525. 

La.  Ann.  822.  95.  Boynton  v.  Phelps,  52  111.  210. 

Missouri. — Gray   v.   Kerr,   33   Mo.  96.  Brackenbush    v.    Dorsett,    138. 

159.  111.  167,  27  N.  E.  934. 

]Vebraska. — Bemis    v.    Gannett,    8 
Neb.  236. 


255     iSuRETiEs  ON  Bond  in  Legal  Pkoceedings.     §§  234,  235a 

tion,  does  not  change  the  liability  of  the  principal  or  surety,  the 
latter  is  not  released." 

§  234.  Liability,  Joint  and  Several. — The  undertaking  of  a 
surety  in  an  injunction  bond,  where  there  are  several  complainants, 
is  in  law  for  the  principals,  several  as  well  as  joint.  The  surety  is 
bound  that  each  and  all  of  his  principals  shall  perform  and  fulfill 
whatever  decree  may  be  rendered  in  the  cause  against  all  or  either 
of  them.  Hence,  the  abatement  of  a  suit  in  equity  as  to  one  of  sev- 
eral joint  plaintiffs  by  the  neglect  of  both  parties  to  revive ;  or  the 
discharge  of  one  upon  some  ground  applicable  to  him  alone,  can- 
not affect  the  liability  of  the  surety  for  the  surviving  party  or 
parties  against  whom  the  final  decree  may  have  been  properly  ren- 
dered.^^ 

§  235.  What  Law  Governs. — An  injunction  bond  must  be 
construed  with  reference  to  the  law  in  force  when  it  was  executed. 
The  liability  of  the  principal  or  surety  cannot  be  changed  by  the 
passage  of  a  statute  which  takes  effect  after  the  execution  of  the 
bond.  Thus,  a  statute  passed  before  execution  of  a  contract  or  in- 
junction bond,  but  which  does  not  take  effect  until  afterwards,  is,, 
as  to  such  contract,  inapplicable,  and  can  have  no  effect  on  the  con- 
tract or  bond.^*  The  measure  of  liability  of  sureties  is  fixed  by 
the  terms  of  the  instrument  they  sign,  and  such  undertaking  can- 
not be  enlarged  or  varied  by  judicial  construction.  Their  under- 
taking will  be  construed  as  the  words  used  are  ordinarily  under- 
stood.^ 

§  235a.  Liability  and  Damages. — As  stated  in  the  preceding 
section  the  liability  of  the  sureties  is  fixed  by  the  terms  of  the 
bond.  The  damages  recoverable  are  limited  by  the  terms  and  pen- 
alty of  the  bond.^    So  where  a  bond  is  conditioned  to  secure  pay- 

97.  Keith   v.   Henkleman,   173   111.  court  is  governed  by  the  principles 
137,  50  N.  E.  692.  adopted  and  applied  by  the  federal 

98.  Kelly     v.     Gordon,     3     Head  courts,  not  by  the  State  law.     Um- 
(Tenn.)  683.  breit  v.  American  Bonding  Co.,  144 

99.  Mix  V.  Vail,  86  111.  40.  Wis.  611,  129  N.  Y.  789. 

Bond  in  a  federal  court.    The  lia-        l.  Mix.  v.  Singleton,  86  111.  194. 
bility  of  a  surety  on  an  injunction        2.  Terry  v.  Robbins  (U.  S.  C.  C.> 
bond   given  in   a  suit  in  a  federal    122   Fed.   725. 


■§§  236, 237  Suretyship  and  Guaranty.  256 

ment  of  "damages  sustained  bj  the  defendant  "  damages  to  one 
not  a  defendant  as  a  result  of  the  wrongful  issuance  of  an  injunc- 
tion cannot  be  recovered.^ 

Counsel  fees  and  expenses  incurred  in  procuring  the  dissolution 
of  an  injunction  are  in  some  cases  recoverable.*  .So  a  bond  to  pay- 
such  sum  "  as  may  for  any  cause  be  recovered  "  v?ill  permit  a  re- 
covery of  costs.^  And  it  is  held  to  be  no  defense  to  an  action 
against  the  surety  that  there  was  want  of  jurisdiction  to  issue  the 
injunction,®  or  that  it  was  issued  against  the  wrong  person.'' 


5;  236,  Dissolution  by  Series  of  Orders. — An  injunction  may 
be  dissolved  by  a  series  of  orders,  one  dissolving  as  to  one  part  one 
day,  and  afterwards  another,  by  consent  of  the  parties;  and  so 
long  as  the  liability  of  the  surety  is  not  made  diiferent  or  more 
burdensome  thereby  than  it  would  have  been  by  a  single  dissolution, 
embracing  the  entire  subject-matter  of  the  injunction,  the  surety 
will  not  be  discharged.* 


§  237.  Concluded  by  Judgment  Against  Principal. — A  surety 
on  an  injunction  bond  cannot  go  behind  the  decree  of  court  to  raise 
questions  of  illegality  as  to  an  agreement  on  which  it  is  founded.* 
And  the  decree  of  court  cannot  be  set  aside,  on  an  injunction  bond, 

8.  Hays  v.  Fidelity  &  Deposit  Co.,  ney's  fees  and  expenses.     Edwards 

112  Fed.  872,  50  C.  C.  A.  569.  v.  Bucker,  66  Kan.  241,  71  Pac.  587. 

4.  Bush  V.  Kirkbride,  131  Ala.  40";,  5.  John  Church  Co.  v.  Dorsey,  38 

30  So.  780;  Nelson  v.  City  of  Albert  Misc.  R.  (N.  Y.)  542,  77  N.  Y.  Supp. 

Lea,  87   Minn.   285,  91  N.  W.   1113;  1065. 

Jameson  v.  Bartlett,  63  Neb.  638,  88  6.  Boise   City   v.    Randall,    8    Ida. 

N.  W.  860.  119,  66  Pac.  938. 

Attorney's    fees    are    limited    to  7.  Boise   City   v.   Randall,   8   Ida. 

those  charged  on  motion  to  dissolve.  119,  66  Pac.  938. 

Church  V.  Baker,  18  Colo.  App.  369,  8.  Brackebush  v.  Dorsett,  138  111. 

71  Pac.  888.  167,  27  N.  E.  934. 

Attorney's    fees    on    unsuccessful  9.  Oelrichs  v.  Spain,  15  Wall.  (U. 

motion  before  final  trial  are  not  re-  S.)   211,  21  L.  Ed.  43;   McAllister  v. 

coverable.      Cunningham    v.    Finch,  Clark,  36  111.  236;  Citizens'  Trust  & 

€3  Neb.  189,  88  N.  W.  168.  Guaranty  Co.  v.  Ohio  Valley  Tie  Co. 

Where  suit  dismissed  after  return  (Ky.  1910),  128  S.  W.  317. 

of    property   cannot    recover    attor-  As  to  effect  cf  judgment  on  surety 

see  §  65  herein. 


257 


SuEETiES  ON  Bond  in  Legal  Proceedings.         §  238 


by  the  surety,  because  the  judgment  against  the  principal,  in  the 
absence  of  fraud  or  mistake,  is  conclusive  as  to  him.^** 

§  238.  Replevin  Bond, — Sureties  on  a  replevin  bond  are  bound 
only  to  the  full  value  of  the  property  not  forthcoming  on  demand. ^^ 
They  are  represented  in  a  replevin  suit  by  the  plaintiff  who  has 
given  the  bond,  and  are  identified  with  him  in  interest,  so  as  to  be 
concluded  by  the  proceedings  in  the  suit.^^    The  surety  cannot  go 


10.  McAllister  v.  Clark,  86  111.  236. 
See,  also,  Richardson  v.  People's 

Nat.  Bank,  57  Ohio  St.  299,  48  N.  E. 
1100. 

11.  Miles  V.  Davis,  36  Tex.  690. 
Where   property  is   set  aside  as 

exempt  after  it  has  been  replevied 
there  is  no  breach  of  the  bond  for 
failure  to  produce  the  property  as 
stipulated.  Jones  v.  Spilters,  9  Ga. 
App.  473,  71  S.  E.  777. 

Liability  to  pay  money  judgment 
conditionaL  Where  by  statute  it  is 
required  that  a  judgment  shall  be 
in  the  alternative  "  for  its  posses- 
sion or  for  the  recovery  of  the  pos- 
session, or  the  value  thereof  in  case 
a  delivery  cannot  be  had  and  for 
damages  for  the  taking  and  deten- 
tion thereof,"  the  obligation  of  the 
sureties  for  the  payment  "  of  such 
sum  as  may,  for  any  cause,  be  re- 
covered against  the  defendants  "  is 
not  absolute,  but  conditional 
merely.  Larson  v.  Hanson,  21  N.  D. 
411,  131  N.  W.  229. 

Measure  of  damages ;  "  fair 
market  value."  The  plaintiff  in  an 
action  on  a  replevin  bond  is  entitled 
to  the  fair  market  value  of  the 
property  in  that  order  and  condi- 
tion as  of  the  time  when  it  should 
have  been  delivered  to  him,  that  Is 
on  the  date  of  the  final  judgment 
in  the  replevin  suit.  Maguire  v. 
Pan  American  Amusement  Co.,  205 
17    . 


Mass.  64,  73,  91  N.  E.  135,  138,  137 
Am.  St.  Rep.  422  Per  Sheldon,  J., 
citing  Swift  t.  Barnes,  16  Pick. 
(Mass.)  194;  Leighton  v.  Brown,  98 
Mass.  515;  Stevens  v.  Tinte,  104 
Mass.  328.  The  fair  market  value 
is  said  to  be  "at  least  the  highest 
price  which  a  normal  purchaser 
not  under  compulsion  will  pay  at 
the  time  and  place  in  question  in 
order  to  get  the  thing."  Maguire  y. 
Pan-American  Amusement  Co. 
(Mass.  1912),  97  N.  E.  142,  quoting 
Holmes,  C.  J.,  in  Bradley  v.  Hooker, 
175  Mass.  142,  55  N.  E.  848. 

Value  of  property  as  damages. 
See  Pettit  v.  Allen,  64  App.  Div.  (N. 
Y.)  579,  72  N.  Y.  Supp.  287;  Talcott 
v.  Rose  (Tex.  Civ.  App.),  64  S.  W. 
1009. 

If  value  not  found  in  verdict  can- 
not enter  judgment  against  sureties. 
Talcott  v.  Rose  (Tex.  Civ.  App.),  64 
S.  W.  1009. 

Costs  may  be  recovered  though 
not  paid.  Campbell  v.  Lane,  2  Neb. 
(Unoff.)   63,  95  N.  W.  1043. 

Attorney's  fees  not  recoverable, 
Gilbert  v.  American  Surety  Co.,  121 
Fed.  499,  57  C.  C.  A.  619,  61  L.  R.  A. 
253. 

Replevin  bond  held  not  a  valid 
statutory  bond  and  not  bindinr,-. 
Horton  v.  Stone,  32  R.  I.  499,  80  Atl 
1. 

12.  Washington  Ice  Co.  v.  Web- 
ster, 125  U.  S.  426,  31  L.  Ed.  799. 


§  239  Suretyship  and  Guaranty.  258 

behind  the  judgment  on  a  replevin  bond  against  the  principal  to 
question  its  validity  except  upon  the  ground  of  fraud  or  mistake/* 

§  239.  Discharge  of  Surety. — Where  a  party  begins  a  replevin 
suit  and  gives  a  bond  conditioned  to  prosecute  the  action  to  final 
judgment,  he  commits  a  breach  of  his  bond  by  discontinuing  the 
suit  before  final  judgment,  though  the  damages  may  be  nominal, 
and,  hence,  the  sureties  on  such  bond  are  not  discharged  by  his  dis- 
missal of  the  suit.^*  And  where  the  replevin  bond  is  insufficient  the 
court  may  order  another  bond,  and  the  latter  will  have  no  effect 
on  the  liability  of  the  sureties  on  the  first  bond,  so  as  to  discharge 
them.^^  And  if  the  additional  bond  is  not  executed  and  filed  ac- 
cording to  the  order  of  the  court,  the  case  may  be  dismissed.^® 

If  the  damages  awarded  are  less  than  the  amount  named  in  the 
first  bond,  judgment  may  be  rendered  against  the  sureties  on  the 
first  bond  alone.^^  The  new  bond  is  not  substituted  for  the  old,  but 
is  additional.  Where  as  a  condition  of  opening  a  judgment  in 
replevin  against  a  defendant  by  default  he  gives  a  bond  conditioned 
for  the  payment  of  any  sum  of  money  recovered  against  him  in 
that  action,  neither  the  fact  that  upon  a  subsequent  trial  the  court 
over  the  objection  of  the  sureties  allowed  the  complaint  to  be 
amended  so  as  to  state  a  cause  of  action  in  conversion,  nor  the  fact 
that  the  judgment  in  the  action  wrongly  awarded  a  sum  of  money 

13*  Colorado.— Cox  v.   Sargent,  10  1100,  affirmed  45  App.   Div.   554,   61 

Colo.  App.  1,  50  Pac.  201.  N.  Y.  Supp.  326. 

Illinois. — Schott  v.  Youree,  142  111.  Ohio. — Richardson  v.  People's  Nat. 

233,  31  N.  E.  591.  Bank,  57  Ohio  St.  299,  48  N.  E.  1100. 

lodiana. — McFadden   v.   Fritz,  110  Pennsylvania. — Cox.  v.  Hartranft, 

Ind.  1,  10  N.  E.  120.  154  Pa.  St.  457,  26  All.  304. 

Kansas. — First     State     Bank     v.  Sonth  Carolina. — Parish  v.  Smith, 

Martin,  81  Kan.  794,  106  Pac.  1056;  66  S.  C.  424,  45  S.  E.  16. 

Kennedy    v.    Brown,    21    Kan.    171;  Texas, — McCoslin  v.  David,  22  Tex. 

O'Loughlin  v.  Carr,  9  Kan.  App.  818,  Civ.  App.  53,  54  S.  W.  404. 

60  Pac.  478.  14.  Alderman   v.  Roesel,   52   S.  C. 

Micliigran. — Jennison   v.  Haine,  29  162. 

Mich.  207.  15,  Smith    v.    Whitten,    117    N.    C. 

Nebraska.— Thomas    v.    Markman,  389,  23  S.  E.  320. 

43  Neb.  623,  62  N.  W  206;   Smith  v.  16.  Smith     v.      Ruby,      6      Heisk. 

Bowers,   2  Neb.    (Unoff.)    611,   89  N.  (Tenn.)  546. 

W.  596.  17.  Smith  v.  Whitten,  117  N.  C.  389, 

New  York.- Christiansen  v.  Mend-  23  S.  E.  320. 
ham,  28  Misc.  R.  765,  59  N.  Y.  Supp. 


259         Sureties  on  Bond  in  Legal  Proceedings.     §§  240,  241 

instead  of  the  usual  relief  in  a  replevin  action,  will  relieve  the 
sureties  from  liability  for  the  amount  of  the  money  judgment  re- 
covered.^^ 

§  240.  New  Parties — Substitution. — If  a  new  party  be  substi- 
tuted for  the  defendant,  it  discharges  the  surety.^^  And  so  if  one 
of  the  defendants  is  discharged  during  the  suit  the  surety  on  the 
replevin  bond  is  discharged.^^  But  it  is  held  that  a  court  may  sub- 
stitute the  owner  of  the  property  in  an  action  of  replevin,  in  the 
place  of  his  agent,  against  whom  the  suit  was  brought,  and  that 
such  substitution  does  not  discharge  the  sureties  on  the  bond,  but 
they  continue  bound  for  the  new  party,  equally  as  if  he  had  been 
the  original  and  only  defendant.^^ 

§  241.  Varying  the  Terms  of  the  Bond. — A  surety  is  dis- 
charged if  the  replevin  bond  is  varied  without  his  consent.  Thus, 
where  the  parties  agree  to  refer  the  case  to  arbitration,  without 
the  surety's  consent,  and  the  case  is  so  settled,  the  surety  is  dis- 
charged.^^ The  surety  does  not  undertake  to  pay  the  damages 
which  may  result,  only  as  determined  by  a  court  of  competent  juris- 
diction ;  if  the  controversy  is  referred  to  arbitrators,  this  discharges 
the  sureties.^^ 

18.  Popper  V.  Seufert,  147  App.  20.  Harris  v.  Taylor,  3  Sneed 
Div.  (N.  Y.)  371,  132  N.  Y.  Supp.  209.    (Tenn.)   536. 

See  Bierce  v.  Waterhouse,  219  U.  See,    also,    Wiggins    v.    Wells,    2 

S.   320,   31    Sup.   Ct.   241,   55   L.   Ed.  Sneed  (Tenn.  )154. 

237.  21,  Hanna    v.    Petroleum    Co.,    23 

19.  Smith     V.      Ruby,     6      Heisk.  Ohio  St.  622. 

(Tenn.)  546.  22.  Archer  v.  Hale,  4  Bing.  464. 

Unless    the    statute    so    permits.       23.  Perkins    v.    Rudolph,    36    111. 

Becovitz  V.  Sapperstein   (Ind.  App.  306;    Moore  v.  Bowmaker,  3   Price 

1910),  92  N.  E.  551.  214. 


ISUBETYSHIP  AND  GUAEANTY.  260 


CHAPTER  X. 

BONDS  OF   PERSONS  ACTING   UNDER   JUDICIAL   SANCTION. 

Section  242.  Executors  and  Administrators. 

243.  Estoppel  of  Judgment  Against  Principal. 

244.  Income  of  Real  Estate. 

245.  Sale  of  Real  Estate  Beyond  Jurisdiction  of  Court. 

246.  Surety  is  Liable  Only  for  Principal's  Official  Acts. 

247.  Giving  New  or  Additional  Bond. 

248.  Liability  of  Discharged  Surety. 

249.  Sureties  on  Joint  Bonds. 

250.  Allowances  to  Intestate's  Widow  and  Family. 

251.  Executor  or  Administrator  Debtor  to  the  Estate. 

252.  Common-Law   Rule   as   to   Executor  Being   Debtor   to   the 

Estate. 

253.  General  Liability  of  Sureties. 

254.  Same  Person  Administrator  of  One  Estate  and  Executor  of 

Another. 

255.  Executor    or    Administrator    Acting    in    Other    Fiduciary 

Capacity. 

256.  Failure  to  Return  Inventory  or  to  Account. 

257.  Release  of  Sureties. 

258.  When  Right  of  Action  Arises  Against  Sureties. 

259.  Sureties  of  Guardian  —  General  Liability. 
259a.  Bond  not  Complying  with  Statute. 

260.  Giving  Additional  Security. 

261.  Guardian  Selling  Real  Estate. 

262.  Discharge  of  Surety. 

263.  Termination  of  Surety's  Liability. 

264.  When  Action  upon  the  Bond  Accrues. 

265.  Estoppel  by  Judgment  Against  Principal. 

266.  Estoppel  by  Recitals  in  the  Bond. 

267.  Joint  Guardians. 

268.  Joint  Bond  Instead  of  Several. 

269.  Extent  of  Surety's  Liability. 

270.  Revival  of  Liability  by  Surety. 

271.  Receiver's  Bond  —  Liability  of  Sureties. 

272.  Right  of  Action  Against  Surety  on  Receiver's  Bond. 

273.  When  Surety  is  Concluded  by  Decree  of  Court. 

274.  Funds  Coming  Into  the  Hands  of  the  Receiver. 

275.  Giving  a  New  Bond. 

276.  Extent  of  Surety's  Liability. 


261  Bonds  Under  Judicial  Sanction.        §§  242,  243 

Section  277.  Liability  of  Surety  on  Assignee's  Bond. 

278.  Estoppel  of  Surety. 

279.  Giving  New  Bond. 

280.  Default  of  Assignee. 

281.  Discharge  of  Surety. 

§  242.  Executors  and  Administrators. — The  general  rule  is 
that  a  default  of  the  executor  or  administrator  must  be  established 
in  proper  proceedings  against  him  before  the  sureties  can  be  prose- 
cuted upon  their  bond  for  the  default  of  their  principal/  But 
whenever  the  principal  absconds,  conceals  himself,  or  resides  witb- 
out  the  jurisdiction  of  the  court,  then  suit  will  lie  on  the  bond 
against  the  sureties  without  recourse,  in  the  first  place,  to  the  prin- 
cipal. Such  cases  form  an  exception  to  the  general  rule  which  is 
established  for  the  protection  of  the  surties  where  it  can  be  done 
consistently  with  the  preservation  of  the  rights  of  legatees  and  cred- 
itors.^ And  so  where  the  executor  or  administrator  is  dead,  the 
sureties  may  be  sued  at  once,  because  a  demand  upon  the  prin- 
cipal has  become  impossible.^  However,  in  some  jurisdictions  it 
is  not  necessary  to  a  right  of  recovery  that  a  default  has  been  estab- 
lished against  the  principal.*  If  the  bond  has  no  obligee,  it  is  void.^ 
The  liability  of  the  surety  cannot  extend  beyond  the  terms  of  the 
bond.^ 

§  243.  Estoppel  by  Judgment  Against  Principal. — In  the  ab- 
sence of  fraud  or  collusion,  the  sureties  are  concluded  by  a  decree 

1.  Alexander  v.  Bryan,  110  U.  S.  Tucker  v.  People,  87  111.  76;  State 
414,  4  Sup.  Ct.  107,  28  L.  Ed.  195;  v.  Johnson,  7  Blackf.  (Ind.)  520; 
State  V.  Pare,  28  Mo.  App.  512;  Hood    State  v.  Shelby,  75  Mo.  482. 

V.  Hood,  85  N'.  Y.  561;  Haight  v.  Bris-  5.  Tidball  v.  Young,  58   Neb.   261, 

bin,  100  N.  Y.  219,  3  N.  E.  74;  Com-  78  N.  W.  507. 

monwealth  v.  Stub,  11  Pa.  St.  150.  6.  People    to    Use   of    Sterling    v. 

2.  Giles  V.  Brown,  60  Ga.  658;  Huffman,  182  111.  390,  55  N.  E.  981; 
Dunne  v.  American  Surety  Co.,  34  Murphy  v.  Dorsey,  23  Ohio  Cir.  Ct. 
Misc.  (N.  Y.)  584,  70  N.  Y.  Supp.  391;  R.  157. 

Commonwealth  v.  Wenrick,  8  Watts.  An  executor's  bond  creates  a  con- 

(Pa.)   159.  tinning  liability,   each   violation   of 

3.  People  V.  Admire,  39  111.  251.  which  is  a  breach  and  furnishes  a 
See,    also,    Bischoff    v.    Engel,    10  cause  of  action.    Tucker  v.  Stewart, 

App.  Div.  (N.  Y.)  240,  41  N.  Y.  Supp.    147    Iowa  294,   304,    126   N.   W.    183, 
815.  citing  Fuller  v.  Cushman,  170  Mass. 

4.  Morgan   v.    West,    43    Ga.    275;    286,  49  N.  E.  631. 


§  243 


.Suretyship  and  Guaranty. 


262 


of  the  proper  court  as  to  their  principal's  liability,  even  though 
they  are  not  parties  to  such  suit.^  However,  if  the  principal  is  not 
properly  before  the  court,  and  the  court  has  no  jurisdiction,  then 
the  surety  is  not  concluded  by  such  decree.* 

In  some  jurisdictions  it  is  held  that  a  judgment  against  an  ad- 
ministrator or  executor  is  only  prima  facie  evidence,  and  not  con- 
clusive upon  the  surety.^  Thus,  a  surety  may  plead  and  prove 
after  judgment  against  his  principal,  the  deficiency  of  assets  in  the 
hands  of  his  principal,  liable  to  the  payment  of  the  debt.^°  And  so 
sureties  on  a  bond  are  not  liable  to  a  creditor  of  the  estate  for  the 
amount  of  judgment  obtained  by  him  in  an  action  against  the  prin- 
cipal, commenced  after  the  claim  was  barred  by  the  statute  of  limi- 
tations, to  which  action  the  principal  appeared  and  pleaded  the 
statute,  and  then  let  the  suit  go  by  default.^^  And  so  if  the  ad- 
ministrator fails  to  plead  the  statute  of  limitations,  in  an  action 
against  the  surety,  he  may  set  it  up  as  a  defense.^^ 


7.  United  States.  —  Stovall  v. 
Banks,  10  Wall.  583,  19  L.  Ed.  1036. 

Alabama. — Martin  v.  Tally,  72  Ala. 
23. 

California. — Irwin  v.  Backus,  25 
Cal.  214. 

Illinois. — Nevitt  v.  Woodburn,  160 
111.  203,  43  N.  E.  285;  Housh  v. 
People,  66  111.  178. 

Kansas. — American  Surety  Co.  v. 
Pratt,  67  Kan.  294,  72  Pac.  775. 

Kentucky. — Frazer  v.  Frazer,  25 
Ky.  Law  Rep.  473,  76  S.  W.  13. 

Maine. — Burgess  v.  Young,  97  Me. 
386,  54  Atl.  910. 

Massachusetts. — McKim  v.  Haley, 
173  Mass.  112,  54  N.  E.  257;  Heard  v. 
Lodge,  20  Pick.  53. 

New  Hampshire. — Judge  v.  SuUo- 
way,  68  N.  H.  511,  44  Atl.  720. 

New  York. — Harrison  v.  Clark,  87 
N.  Y.  572;  Casoni  v.  Jerome,  58  N.  Y. 
314. 

Ohio.— O'Conner  v.  State,  18  Ohio 
225. 

Oklahoma. — Greer  v.  McNeal,  11 
Okla.  519,  526,  69  Pac.  891,  893. 


Pennsylyania.  —  Commonwealth  v. 
Ruhl,  199  Pa.  St.  40,  48  Atl.  905;  In 
re  Young's  Estate,  199  Pa.  St.  35,  48 
Atl.  692. 

Wisconsin. — Barney  v.  Babcock's 
Estate,  115  Wis.  409,  91  N.  W.  982; 
Meyer  v.  Borth,  97  Wis.  352,  72  N. 
W.  748;  Holden  v.  Curry,  85  Wis. 
504,  55  N.  W.  965. 

For  a  further  consideration  of 
these  cases  see  §  65  herein. 

8.  State  V.  Drake,  52  Ark.  350, 12  S. 
W.  706;  Robinson  v.  Hodge,  117 
Mass.  222;  Loop  v.  Northup,  59  Hun 
(N.  Y.)  75,  13  N.  Y.  Supp.  144. 

9.  Bird  v.  Mitchell,  101  Ga.  46,  28 
S.  E.  674;  Bennett  v.  Graham,  71  Ga. 
211;  Jenkins  v.  State,  76  Md.  255,  23 
Atl.  608,  790;  Barksdale  v.  Butler,  6 
Lea  (Tenn.)  450. 

10.  Gibson  v.  Robinson,  91  Ga.  756. 

11.  Robinson  v.  Hodge,  117  Mass. 
222. 

12.  Dawes  v.  Shed,  15  Mass.  6. 
See,  also,  Thayer  v.  Hollis,  3  Met. 

(Mass.)  369. 


263 


Bonds  Under  Judicial  iSanction. 


§  244 


§  244.  Income  of  Real  Estate. — A  surety  on  an  administra- 
tor's or  executor's  bond  is  liable  for  conversion,  waste  or  appropria- 
tion of  property  of  the  decedent's  estate  only  of  such  property  as 
comes  into  his  hands  subject  to  administration  under  the  bond.^' 
When  sureties  sign  the  administration  bond,  they  contract  only  to 
indemnify  the  persons'  interest  in  the  personal  estate  for  which 
such  bond  is  given,  and  will  not  be  liable  on  it  for  the  proceeds 
of  real  estate  sold  by  such  principal ;  they  are  not  liable  for  the  in- 
come of  the  decedent's  real  estate.^*  Where  the  executor  has  au- 
thority to  sell  real  estate  and  convert  it  into  personalty,  such  sale 
works  an  equitable  conversion,  it  is  held,  and  the  real  estate  is  t(i 
be  considered  as  personal  property,  and  the  sureties  can  be  ulti- 
mately held  responsible  for  the  results  of  such  action.^^  But  other 
courts  hold  that  a  new  bond  shall  be  executed  by  the  principal  or 
executor,  on  selling  real  estate,  and  the  sureties  on  the  first  bond 
are  not  liable  for  his  default  as  to  the  accounting  for  proceeds  of 
such  sale,  though  the  executor  has  authority  to  re-invest  them/® 
(Some  courts  hold  that  the  sureties  on  the  first  bond  are  liable  for 


13.  Jackson  v.  Wilson,  117  Ala. 
432,  23  So.  521. 

See,  also,  Campbell  v.  American 
Bonding  Co.  (Ala.  1911),  55  So.  306; 
Probate  Court  of  City  of  Pawtucket 
V.  Williams,  30  R.  I.  144,  73  Atl.  382, 
74  Atl.  177. 

A  test  of  representathe  or  indi- 
Tidnal  liability  is  whether  the  judg- 
ment, the  suit  against  the  adminis- 
trator as  such  would  invite,  would 
fasten  or  establish  a  liability  upon 
or  against  property  of  the  decedent. 
Campbell  v.  American  Bonding  Co. 
(Ala.  1911),  55  So.  306,  citing  Ala- 
bama State  Bank  v.  Glass,  82  Ala. 
278,  2  So.  641;  Burdine  v.  Roper,  7 
Ala.  466;  Weeks  v.  Love,  19  Ala.  25; 
Godhold  V.  Roberts,  20  Ala.  354. 

14.  Illinois. — Hoffman  v.  People, 
182  111.  390,  55  N.  E.  981,  78  111.  App. 
345;  Young  v.  People  35  111.  App. 
363. 


Massachusetts. — Robinson  v.  Mil- 
lard, 133  Mass.  236. 

New  York. — Douglass  v.  Mayor,  56 
How.  Pr.  (N.  Y.)  178. 

Pennsyliania. — Reed  v.  Common- 
wealth, 11  Serg.  &  R.  (Pa.)  441; 
Commonwealth  v.  Gibson,  8  Watts 
(Pa.)   214. 

South  Carolina. — Jennings  v.  Parr, 
62  S.  C.  306,  40  S.  E.  683. 

15.  Emmons  v.  Gordon,  140  Mo. 
490,  41  S.  W.  998;  Hood  v.  Hood,  85 
N.  Y.  561;  Hartzell  v.  Common- 
wealth, 42  Pa.  St.  453. 

16.  Illinois. — Hoffman  v.  People, 
78  III.  App.  345. 

Indiana. — Warwick  v.  State,  5  Ind. 
350. 

Iowa. — Bunce  v.  Bunce,  65  Iowa 
106,  21  N.  W.  205. 

Kansas. — Morris  v.  Cooper,  35 
Kan.  156,  10  Pac.  588. 

Ma<5sachnsetts.— Robinson  v.  Mil- 
lard, 133  Mass.  236. 


§  245  Suretyship  and  Guaranty.  264r 

the  income  of  real  estate."  But  this  matter  is  to  a  great  extent 
regulated  by  statute,  which  makes  sureties  responsible  for  the  pro- 
ceeds or  rents  and  profits  of  real  estate  received  by  the  executor  or 
administrator  in  his  representative  capacity,  as  well  as  for  person- 
alty.^« 

There  is  a  conflict  of  authority  in  the  decisions  of  the  several 
States  as  to  whether  the  sureties  are  liable  for  the  proceeds  of  real 
estate,  received  by  the  principal,  and  they  cannot  be  reconciled  by 
reason  of  the  diiferences  which  exist  in  the  form  of  the  bond  con- 
sidered in  the  several  cases.^^  The  local  statute  and  form  of  bond 
should  be  consulted  in  every  case. 

§  245.     Sale  of  Real  Estate  Beyond  Jurisdiction  of  Court. — By 

the  weight  of  authority,  the  sale  of  real  estate,  beyond  the  juris- 
diction where  the  will  is  probated,  is  inoperative  and  can  have  no 
extra-territorial  force  or  validity ;  and  the  executor  of  such  will 
cannot,  because  of  his  appointment  in  accordance  with  the  laws  of 
one  State,  thereby  acquire  authority  to  sue  for,  or  in  any  manner 
intermeddle  with  such  realty  or  effects  of  his  testator,  unless  the 
will  be  tliere  proved,  or  the  law  of  such  State  dispenses  with  the 
probate  conferring  the  requisite  permission.^**  Hence,  the  sureties 
of  an  executor  are  not  liable  for  the  default  of  an  executor  to  ac- 
count for  the  proceeds  of  the  sale  of  real  estate  in  another  State, 
where  it  is  not  shown  that  the  will  was  probated  in  the  other  State, 
nor  that  the  sale  was  made  in  accordance  with  the  laws  of  the  other 
State.^^     But  there  are  authorities  announcing  a  different  rule^ 

17.  Llndley  v.  State  ex  rel  Wells,  19.  Probate  Court  v.  Hazard,  13  R. 
115  Ind.  502,  17  N.  E.  611;  Dlx  v.  I.  3.  This  case  discusses  the  differ- 
Morris,  66  Mo.  514;  Reherd  v.  Long,  ent  decisions,  and  its  review  is  valu- 
77  Va.  839;  Mann  v.  Everts,  64  Wis.  able.  White  v.  Dltson,  140  Mass.  351, 
372,  25  N.  W.  209.  4  N.  E.  606. 

18.  Indiana.— Hawkins  v.  Kimball,  20.  Kerr  v.  Moon,  9  Wheat.  (U.  S.) 
57  Ind.  45.  565,  6  L.  Ed.  161;  Doe  v.  McFarland, 

Maine.— Decker  v.  Decker,  74  Me.  9  Cranch  (U.  S.)  151,  3  L.  Ed.  687; 

465.  Lucas  v.  Tucker,  17  Ind.  41;  Em- 
Missouri. — Dix   v.   Morris,   66   Mo.  mons    v.    Gordon,    140    Mo.    490,    41 

514.  S.  W.  998;  Wills  v.  Cooper,  2  Ohio  St. 

Ohio.— Griswold  v.  Frank,  22  Ohio  124. 

St.  90.  21.  Emmons    v.    Gordon,    140    Mo. 

Tirginia.— Reherd  v.  Long,  77  Va.  490,  41  S.  W.  998. 

839. 


265  Bonds  Under  Judicial  Sanction.  §  24(> 

which  holds  that  where  an  executor  qualifies  in  one  State  to  sell 
land  in  another  State  which  belongs  to  his  testator,  under  the  power 
of  the  will,  the  principal  and  his  sureties  are  liable  for  the  default 
of  the  principal  in  accounting  for  the  proceeds  of  such  sale  of  the 
extra-territorial  lands.^^ 

§  246.     Surety  is  Liable  Only  for  Principal's  Official  Acts. — 

Sureties  on  the  bond  of  an  administrator  or  executor  are  liable  only 
for  acts  of  nonfeasance  or  misfeasance  of  their  principal  in  respect 
of  his  official  acts.  If  the  principal  fairly  arid  honestly  administers 
the  estate  committed  to  his  care  and  pays  to  the  distributees  their 
proper  shares  of  the  estate,  then  his  sureties  are  discharged  from  all 
obligations  upon  his  official  bond.^^  Hence,  the  giving  of  a  note  by 
the  administrator  is  such  a  departure  from  his  authority  as  to  re- 
lieve the  estate  and  also  his  sureties  from  liability  as  to  the  pay- 
ment of  the  note."'* 

A  surety  is  not  bound  to  answer  for  the  default  of  an  executor 
or  administrator  in  any  line  of  actions  not  within  his  official  ca- 
pacity.^^ 

iSo  a  surety  in  an  executor's  bond  is  not  liable  for  rents  and 
profits  of  the  real  estate  of  the  testator  received  by  the  executor  and 
charged  to  him  by  the  court,  when  he  has  no  such  authority 
to  collect  by  law.^®  The  surety  is  not  bound  to  settle  for  the 
rents  and  profi'ts  of  the  testator's  laud  converted  by  his  principal. ^^ 
•So  where  no  duty  is  imposed  upon  the  executor  as  executor,  but 

22.  Judge  V.  Heydock,  8  N.  H.  491;  ministrator  are  not  liable  for  the 
Hooper  v.  Hooper,  29  W.  Va.  276.  breach  of  agreement  made  by  him 

23.  Bird  v.  Mitchell,  101  Ga.  46,  28  with  the  heirs  or  others  where  the 
S.  E.  674.  promise  was  one  made  by  him   in 

See,  also,  James  v.  Little,  135  Ga.  his  individual   capacity  and  not  in 

672,  70  S.  E.  251.  his       capacity      as      administrator. 

24.  Coruthwaite  v.  Bank,  57  Ind.  James  v.  Little,  135  Ga.  672,  70  S. 
268;    Rittenhouse  v.  Ammerman,  64  E.   251. 

Mo.  197;  Curtis  v.  Bank,  39  Ohio  579;  26.  Gregg  v.  Currier,  36  N.  H.  200. 

Gregory  v.  Leigh,  33  Tex.  813.  See,   also.   United   States  Fidelity 

25.  Shields  v.  Smith,  8  Bush  (Ky.)  &  Guaranty  Co.  v.  Russell  &  Co.,. 
601;    State  ex  rel.  Jacobs  v.  Elliott,  141  Ky.  601,  133  S.  W.  572. 

157  Mo.  609,  57  S.  W.  1087;  State  v.  27.  Gibson  v.  Farley,  16  Mass.  280; 

Anthony,  30  Mo.  App.  638.  McCoy  v.  Scott,  2  Rawle   (Pa.)   222; 

IndiTidnal    contract     with    heirs.  Jennings  v.   Parr,   62   S.  C.   306,  40 

The  sureties  upon  a  bond  of  an  ad-  S.  E.  683. 


•§  247  Suretyship  and  Guaranty.  266 

upon  him  as  a  devisee  under  the  will,  he  is  liable  only  as  devisee, 
and  not  as  executor,  and  so  there  is  no  liability  upon  his  surety  as 
executor.^**  In  general,  sureties  are  responsible  for  the  performance 
of  the  executorial  duties  such  as  defined  by  law,  such  as  collecting 
of  ithe  personal  assets,  the  faithful  performance  of  his  duties,  as 
the  appropriation  of  the  payments  to  the  debts  and  legacies  and  the 
proper  accounting  of  the  personal  property.  But  they  are  not  lia- 
ble for  failure  of  the  execution  of  the  trusts  imposed  by  the  will.^^ 
And  the  sureties  on  the  bond  of  a  public  administrator  are  only 
liable  for  money  coming  into  his  hands  in  his  oificial  capacity,"'^ 

§  247.  Giving  New  or  Additional  Bond. — Whether  the  new 
-or  additional  bond  releases  the  sureties  on  the  prior  bond  depends 
upon  the  statute.  It  is  generally  held  that  if  the  application  lor 
A  new  bond  is  made  by  a  surety  on  the  prior  bond,  the  surety  on 
the  prior  bond  is  released  from  liability  for  all  defaults  of  the 
principal  after  the  new  bond  is  executed  and  approved.  But  if 
the  court  acts  on  his  own  motion,  or  if  the  application  is  made 
by  some  person  other  than  a  surety,  the  new  bond  is  ordinarily 
cumulative  in  its  effect  and  the  sureties  on  the  prior  bond  remain 
liable.  In  some  jurisdictions  the  court  may,  by  statutory  provi- 
sions, on  the  application  of  any  surety  who  conceives  himself  to 
be  in  danger  by  reason  of  his  suretyship  on  the  bond,  require  the 
principal  to  give  another  bond  under  penalty  of  being  removed 
from  office.^^ 

When  the  first  bond  continues  in  force  and  is  obligatory  upon 
the  makers  as  if  the  second  had  not  been  given,  a  creditor  or  other 
person  interested  in  the  estate  has  his  election  upon  which  bond  to 
sue,  if  the  maladministration  for  which  suit  is  brought  is  a  breach 
of  both  bonds.^" 

When  the  principal  gives  a  new  bond,  there  is  no  new  commit- 
ment of  the  estate  to  his  hands,  nor  is  there  any  settlement  '' 
or  rest  made  in,  his  accounts,  unless  so  ordered  by  statute.     And 

28.  Sims  V.  Lively,  14  B.  Mon.  30.  State  ex  rel.  Jacobs  v.  Elliott, 
(Ky.)  433.  157  Mo.  609,  57  S.  W.  1087. 

29.  Carter  v.  Young,  9  Lea  (Tenn.)  31.  Johnson  v.  Frequay,  1  Dana 
210;  Drane  v.  Baylies,  1  Humpli.  (Ky.)  514;  Stevens  v.  Stevens,  3 
(Tenn.)  173;  Hugh>ett  v.  Hughlett,  Redf.  (N.  Y.)  507;  Foster  v.  Wise,  46 
3  Humph.  (Tenn.)   452.  Ohio  St.  20,  16  N.  E.  687. 

32.  Pinkstaff  v.  State,  59  111.  148. 


2Q7  Bonds  Under  Judicial  Sanction.  §  248 

this  new  bond  covers  the  whole  liability  of  the  administrator  to 
the  estate,  whether  incurred  before  or  after  execution.^^ 

One  class  of  cases  holds  that  the  sureties  in  the  new  bond  are 
primarily  liable  for  the  whole  amount  for  which  the  principal 
ought  to  account ;  that  is,  the  last  bond  should  be  exhausted  before 
resort  can  be  had  to  the  first  for  any  defalcation  that  occurred  be- 
fore the  sureties  on  it  are  discharged.^*  But  this  is  contrary  to  the 
general  rule.^''  Still  other  courts  hold  that  the  first  sureties  are 
primarily  liable,  and  if  the  last  sureties  have  paid  the  debt,  they 
may  recover  against  the  first  the  full  amount  paid  by  them.^^ 

A  surety  may  be  released  in  some  jurisdictions  after  a  settle- 
ment has  been  made  by  his  principal,  after  which  the  surety  is 
no  longer  liable,^''  but  the  statute  must  be  strictly  followed.^^  So, 
unless  permitted  by  statute,  a  surety  cannot  be  discharged  upon 
the  application  of  the  executor.^^ 

§  248.  Liability  of  Discharged  Surety. — It  will  be  presumed 
that  the  administrator  performed  his  duty  until  the  contrary 
is  proved;  and  to  render  a  discharged  surety  liable,  it  must 
be  alleged  and  proved  that  before  his  discharge,  the  administrator 

33.  Arkansas. — Dugger  v.  Wright.  Wisconsin. — Rudolph    v.    Malone, 

51  Ark.  232,  11  S.  W.  213.  104  Wis.  470.  80  N.  W.  743. 

Illinois. — Pinkstaff  v.  State,  59  111.  As   to   public   administrators,   see 

148.  State  v.  Kennedy,  163  Mo.  510,  63  S. 

Indiana. — State  ex  rel.  Horner  v.  W.  678;  State  v.  Holman,  93  Mo.  App. 

Barrett,  121  Ind.  92,  22  N.  E.  969.  611,  67  S.  W.  747. 

Kansas.— Brown  v.  State,  23  Kan.  34.  Bobo  v.  Vaiden,  20  S.  C.  271; 

235.  Morris  v.  Morris,  9   Heisk.   (Tenn.) 

Kentucky. — Pepper  v.  Donnelly,  87  814. 

Ky.  259,  8  S.  W.  441.  35.  Pinkstaff  v.  State,  59  111.  148; 

Massachusetts. — Choate  v.  Arring-  Choate  v.  Arrington,  116  Mass.  552; 

ton,  116  Mass.  552.  State  v.  Berning,  74  Mo.  87. 

Missouri. — State  v.  Berning,  74  Mo.  36.  Oorrigan  v.  Foster,  51  Ohio  St. 

87.  225,  37  N.  E.  263. 

New  York. — Scofield  v.   Churchill,  37.  Clark  v.  American  Surety  Com- 

72  N.  Y.  565.  pany,  171  111.  235,  49  N.  E.  481. 

Ohio, — Foster  v.  Wise,  40  Ohio  St.  38.  Hickerson   v.   Price,   2   Heisk. 

20.  (Tenn.)  623. 

Oklahoma. — Greer   v.    McNeal,    11  39.  Clark  v.  American  Surety  Com- 

Okla.  519,  526,  69  Pac.  891,  893.  pany,  171  111.  235,  49  N.  E.  481;  Bel- 

Tfnnessee. — Morris    v.    Morris,    9  linger  v.  Thompson,  26  Ore.  320,  37 

Heisk,  814.  Psic.  714,  40  Pac.  229. 


§§  249, 250  Suretyship  aisd  Guaranty.  268 

had  misapplied  the  assets  of  the  estate.  In  the  absence  of  such 
proof,  the  surety  on  the  new  bond  is  alone  liable/'^  where  the 
statute  declares  the  discharged  surety  shall  be  liable  only  for  such 
misconduct  as  happened  prior  to  giving  the  new  bond/^ 

§  249.  Sureties  on  Joint  Bonds. — If  there  are  more  than  one 
principal  of  the  estate,  and  one  or  more  of  them  are  removed,  die 
or  resign  their  office,  then  the  remaining  must  discharge  the  whole 
duties  required  by  law  respecting  the  estate.  And  the  sureties  on 
the  joint  bond  are  liable  for  the  subsequent  acts  of  the  remaining 
principals,'*'  during  their  administration.*^  Before  discharge,  the 
administrator  must  account  to  his  co-administrators,  and  then  if 
the  latter  give  a  new  bond  it  operates  to  exonerate  the  sureties 
upon  the  joint  bond,  and  from  liabiltty  for  a  devastavit  after  such 
order  of  discharge.** 

One  of  the  joint  administrators  may  bring  suit  against  the  sure- 
ties on  a  joint  bond  for  a  default  of  one  of  his  co-administrators 
and  recover  the  full  amount  of  defalcation  from  the  sureties.*^ 
And  after  the  sureties  have  paid,  they  have  their  remedy,  if  they 
have  any,  against  the  administrator  who  sued  them,  in  his  indi- 
vidual capacity,  as  one  of  their  principals,  for  indemnity.*® 

'When  a  joint  and  several  bond  has  been  executed  by  two  execu- 
tors an  action  may  be  brought  against  the  sureties  on  the  bond  of 
one  of  the  executors  in  favor  of  the  other  who  is  a  legatee.*^ 

§  250.  Allowances  to  Intestate's  Widow  and  Family. — In  the 
States  where  allowances  are  made  directly  to  the  family  of  the 
decedent,  his  representatives  have  no  control  over  them.  iSo  if 
an  administrator  interferes  with  such  property,  he  is  individually 
liable  as  a  tort-feasor,  and,  of  course,  his  sureties  are  not  liable 

40.  Beard  v.  Roth,  35  Fed.  397;  44.  Veach  v.  Rice,  131  U.  S.  293,  9 
Phillips  V.  Barzeal,  14  Ala.  146;  State    S.  Ct.  730,  33  L.  Ed.  163. 

V.    Stroop,   22   Ark.   328;    McKim   v.  45.  Boyle  v.  St.  John,  28  Hun  (N. 

Bartlett,  129  Mass.  226.  Y.)  454;  Sperb  v.  McCoun,  110  N.  Y. 

41.  Beard  v.  Roth,  35  Fed.  397.  605,  18  N.  E.  441. 

42.  Dobyns  v.  McGovem,  15  Mo.  46.  Boyle  v.  St.  John,  28  Hun  (N. 
662.  Y.)  454;  Sperb  v.  McCoun,  110  N.  Y. 

43.  Marsh   v.    People,   15   111.   284;  605,  18  N.  E.  441. 

Brazer  v.  Clark,  5  Pick.  (Mass.)  96;        47.  Municipal  Court  v.  Whaley,  2& 
Towne  v.  Ammidon,  20  Pick.  (Mass.)    R.  I.  289,  55  Atl.  750. 
535;   State  v.  Rucher,  59  Mo.  17. 


269  Bonds  Under  Judicial  iSanction.  §  251 

for  his  act.'*^  Thus,  money  on  hand  set  apart  by  law  for  the  sup- 
port of  the  widow  of  the  decedent  and  his  family,  belongs  to  her 
for  that  purpose,  and  is  not  assets  in  the  hands  of  the  administra- 
tor, and  if  he  converts  it,  no  recourse  can  be  had  against  his  sure- 
ties.^^ 

But  if  the  statute  requires  the  executor  or  administrator  to  pay 
over  the  money  to  the  widow  and  family,  or  specifies  articles  al- 
lowed, then  the  sureties  on  his  bond  are  liable  for  his  default  in 
non-compliance  with  the  law.^" 

§  251.     Executor  or  Administrator  Debtor  to  the  Estate. — The 

rule  of  the  common  law  is,  that  the  appointment  and  qualification 
of  a  debtor  to  the  estate  as  executor  of  his  creditor's  assets,  oper- 
ates as  a  legacy  of  the  debt  and  discharges  the  executor  from  its 
payment,  and  of  course  the  sureties  on  his  bond  are  not  liable  for 
the  collection  of  such  debt.  But  this  rule  has  been  greatly  quali- 
fied in  England,  and  probably  never  existed  in  the  United  States. 
But  the  rule  in  the  United  States  is  not  uniform.  One  line  of 
<;ases  holds  that  such  debt  becomes,  prima  facie^  assets  in  the  hands 
of  the  principal,  to  be  accounted  for  and  adjusted  in  court  as  as- 
sets of  the  estate  actually  realized,  and  a  default  of  the  principal 
to  account  for  such  debt,  makes  his  sureties  liable  as  if  it  was  any 
other  asset. ^^  That  is,  the  acts  of  the  principal  in  dealing  with 
the  instruments  of  which  his  indebtedness  to  the  estate  arises,  can- 
not vary  or  affect  the  rule  that,  as  a  contract  between  him  and  the 
estate,  they  are  extinguished,  and  the  amounts  due  upon  such  in- 
struments have  become  assets  of  the  estate,  and  if  default  is  made 
by  the  principal,  the  sureties  are  liable  for  these  debts  as  so  much 
cash  received,  though  the  administrator  or  executor  owing  the 
estate  was  insolvent  during  the  period  of  his  ofiice.^^    And  the  sure- 

48.  Morris    v.     Morris,  9     Heisk.  Cheetham  v.  Ward,  1  Bos.  &  P.  630; 
(Tenn.)  814.  Freakley  v.  Fox,  9  Barn.  &  Cr.  130. 

49.  Rocco    V.    Cicalla,  12    Heisk.  52.  Alabama. — Wright  v.  Long,  66 
(Tenn.)    508;    Bayless  v.  Bayless,   4  Ala.  3S9. 

Cold.  (Tenn.)  359.  California.— Treweek    v.    Howard, 

50.  Commonwealtli       v.       Longe-    105  Cal.  434,  39  Pac.  20. 

Tiecker,  1  Chester  County  Rep.  (Fa.)  Massachnsett?. — Chapin  v.  Waters, 

202.  110  Mass.  195. 

51.  Winship  v.  Bass,  12  Mass.  199;  Xew   Hampshire. — Judge   of   Pro- 
Waukford  v.  Waukford,  1  Salk.  299; 


§  252         Suretyship  and  Guaranty.  270 

ties  will  not  be  discharged  from  such  liability  by  fraud  of  the 
principal  in  procuring  their  execution  of  the  bond,  where  the  bene- 
liciaries  of  the  estate  in  whose  interest  the  liability  is  sought  to 
be  enforced  are  themselves  innocent  of  the  fraud."^ 

Another  line  of  cases  holds  that  if  such  principal  is  insolvent 
at  the  time  of  his  appointment,  his  failure  to  pay  his  debt  is  not 
a  breach  of  the  trust  for  which  the  sureties  are  liable ;  and  so  if 
the  principal,  in  accounting,  treats  his  own  debt  as  available  as- 
sets, and  the  court  decrees  distribution  accordingly,  the  sureties 
are  not  bound  by  the  decree,  and  a  court  of  equity  will  grant  the 
sureties  relief, ^^  Such  principal  should  charge  himself  with  the 
debt ;  but  his  sureties  are  not  liable  for  it,  if  they  show  that  he  was 
insolvent  beyond  the  amount  that  could  have  been  saved  to  the 
estate  by  the  exercise  of  diligence.^^  But  where  the  principal  is 
solvent,  it  is  his  duty  to  inventory  and  account  for  his  own  debts 
to  the  estate.     If  he  does  not,  his  sureties  are  liable  for  the  same.^^ 


§  252.  Common  Law  Rule  as  to  Executor  Being  Debtor  to 
the  Estate — Statutory  Provisions. — Except  as  against  creditors, 
an  executor's  indebtedness  to  the  testator  was  by  the  common  law 
released  or  extinguished." 

But  this  has  been  changed  by  statute  in  many  States,  making 


bate  V.  Sulloway,  68  N.  H.  511,  44  Pa.    St.    533;    Garber    v.    Common- 

Atl.  720.  wealth,  7  Pa.  St.  265. 

Ohio. — McGaughey    v.    Jacoby,    54  Tennessee. — Rader  v.  Yeargin,  85 

Ohio  St.  487,  44  N.  E.  231;  Tracy  v.  Tenn.  486,  3  S.  W.  178. 

Cord,  2  Ohio  St.  431.  Vermont.— Lyon  v.  Osgood,  58  Vt. 

63.  Treweek  v.   Howard,   105   Cal.  707. 

434,     39     Pac.     20;     McGaughey     v.  55.     State  ex  rel.  McClamcock  v. 

Jacoby,  54  Ohio  St.  487,  44  N.  E.  231.  Gregory,  119  Ind.  503,  22  N.  E.  1. 

64.  Maine.— Potter   v.    Titcomb,    7  56.  Condit    v.    Winslow,    106    Ind. 
Me.  302.  142,  5  N.  E.  751;   Piper's  Estate,  15 

Missonri. — McCarty   v.  Frazer,   62  Pa.   St.   533;    Rader   v.   Yeargin,   85 

Mo.  263.  Tenn.    486,    3    S.    W.    178;    Probate 

^'ew  Jersey. — Marker  v.   Irick,  10  Court  v.  Merriam,  8  Vt.  234. 

N.  J.  Eq.  269.  57.  Thomas  v.  Thompson,  2  Johns. 

New    York. — Baucus    v.    Barr,    45  (N.   Y.)    471;    Gardner  v.   Miller,   19 

Hun  582,  107  N.  Y.  624.  Johns.  (N.  Y.)  188;  Marvin  v.  Stone, 

Pennsylyanla.- Piper's   Estate,   15  2  Cow.  (N.  Y.)  781;  Co.  Litt.  264,  b, 

note  1;  2  Bl.  Com.  512. 


271  Bonds  Undee  Judicial  Sanction.  §  252 

him  liable  for  his  own  debt  to  the  estate  and  thereby  binding  his 
sureties.^^ 

But  without  any  special  statute,  this  doctrine  was  accepted  in 
]\Iassachusetts,  Maine,  Connecticut  and  Vermont,^^  either  on  the 
gi'ouud  of  statutes  providing  for  the  settlement  of  estates  and  the 
distribution  of  property  not  devised  or  liquidated,^"  or  on  the 
ground  that  the  common  law  doctrine  had  never  been  adopted  by 
the  State.*'^  This  is  the  general  rule,  whether  controlled  by  special 
statute  or  not,  as  the  common  law  is  repudiated.  So  the  sureties 
are  liable  for  the  executor's  or  administrator's  debt  to  the  testator, 
as  they  are  his  privies,  and  their  liability  is  co-extensive  with  that 
of  the  principal.^^ 

So  whenever  the  probate  court  enters  a  decree  against  their 
principal  which  binds  the  principal,  their  liability  is  also  de- 
limited.*'^ And  the  administrator  is  not  permitted  to  show  that  he 
could  not  collect  a  debt  due  from  himself.^*  The  consequence  is, 
that  he  and  his  sureties  are  liable  for  the  amount  of  such  debt, 
in  like  manner  as  if  he  had  received  it  from  any  other  debtor  of 
the  testator;  and  it  is  presumed  that  the  sureties  had  in  contem- 
plation this  liability  when  they  executed  the  bond,  and,  hence, 
cannot  complain  of  the  natural  and  legal  consequence  of  their 
own  voluntary  act.^^  It  is  held  that  if  at  the  time  the  surety  as- 
sumes responsibility  the  executor  is  able  to  pay  his  debt  to  the 
estate,  or  afterwards,  during  the  settlement  of  the  estate,  he  be- 
comes able  to  pay  it,  the  surety  is  responsible  for  it  as  assets. 

58.  Judge  of  Probate  v.  Sulloway,  62.  Wattles  v.  Hyde,  9  Conn.  10; 

68  M.  H.  otl,  44  Atl.  720;   Norris  v.  Judge  of  Probate  v.  Sulloway,  68  N. 

TowJo,    i^.4    N.    H.   290;    Soverhill    v.  H.  511,  44  Atl.  720. 

■^n-'  r,    59    N.    Y.    140;    Baucus    v.  63.  Stovall  v.  Banks,  10  Wall   (U. 

^^-1  er,  89  N.  Y.  1;   In  re  Consalus,  S.)    583,   19  L.  Ed.   1036;    Choate  v. 

'  "^    "   "^'.  ^40.  Arrington,  116  Mass.  552;   Towle  v. 

■"*.  T.eland     v.     Felton,     1     Allen  Towle,  46  N.  H.  431;  Deobold  v.  Op- 

i?.'a£s.),    531;    Winship    v.    Bass,    12  permann.  111  N.  Y.  531,  19  N.  E.  94. 

Mass.    198;    Probate   Court   v.   Mer-  64.  Kinney    v.    Ensign,    18    Pick. 

riam,  8  Vt.  234.  (Mass.)   232. 

60.  Winship  v.  Bass,  12  Mass.  198;  See  also  Bassett  v.  Fidelity  &  De- 
Probate  Court  V.  Merriam,  8  Vt.  234.  posit   Co.,   184   Mass.   210,   68   N.   E. 

61.  Bacon    v.    Fairman,    6    Conn.  205. 

121;  Williams  v.  Morehouse,  9  Conn.       65.  Stevens  v.  Gaylord,   11  Mass. 
470;      Davenport     v.     Richards,     16    256. 
Conn.  310;  Potter  v.  Titcomb,  7  Me. 
302. 


^  253 


SUEETYSHIP  AND  GUARANTY. 


272 


"VVlien  the  executor  is  solvent  and  able  to  pay,  and  no  surety  is 
needed,  the  surety  is  responsible  for  his  debt ;  but  where  the  execu- 
tor is  unable  to  pay  and  a  surety's  liability  should  be  valuable, 
the  surety  is  not  liable.*® 

§  253.  General  Liability  of  Sureties. — The  liability  of  sure- 
ties on  the  bond  of  executors  and  administrators  is  generally  co- 
extensive with  that  of  their  principal."  Thus,  they  are  liable  for 
misappropriation  of  funds  of  the  estate  ;^  for  non-payment  of  the 
profits  of  such  funds  ;*'^  for  the  principal's  default  in  performing 
his  official  duties.''''  But  the  sureties  are  not  liable  for  acts  which 
are  not  within  the  scope  of  their  principal's  powers  and  duties, 


06.  Harker  v.  Irick,  10  N.  J.  Eq. 
269;  Lyon  v.  Osgood,  58  Vt.  707,  7 
Atl.  5. 

67.  Goltra  v.  People,  53  111.  224; 
State  V.  Purdy,  67  Mo.  89;  Greer  v. 
McNeal,  11  Okla.  519,  526,  69  Pac. 
891,  893. 

See  James  v.  West,  67  Ohio  St.  28, 
65  N.  E.  156. 

There  may  l>e  a  recovery  of  inter- 
est on  the  penalty  of  a  bond  where 
the  executor  is  charged  in  excess 
thereof.  Bassett  v.  Fidelity  &  De- 
posit Co.,  184  Mass.  210,  68  N.  E.  205. 

68.  State  v.  Brown,  80  Ind.  425; 
State  V.  Wilmer,  65  Md.  178,  3  Atl. 
252. 

69.  Watson  v.  Whitten,  3  Rich.  (S. 
C.)   224. 

70.  Alabama. — Clarke  v.  West,  5 
Ala.  117. 

Indiana. — Morgang  v.  Clipp,  21 
Ind.  119. 

Missouri.— State  v.  Anthony,  30 
Mo.  App.  638. 

New  Hampshire. — Smith  v.  Jewett, 
40  N.  H.  513. 

Oliio.— Wade  v.  Graham,  4  Ohio 
126. 

Liable  for  failure  to  collect  debt 
due  estate.  Sanchez  v.  Porster,  133 
Cal.  614,  65  Pac.  1077. 


Liable  for  failure  to  bring  an  ac- 
tion before  the  expiration  of  the 
statutory  period.  Jenkins  v.  Jensen, 
24  Utah  108,  66  Pac.  773. 

Liable  for  failure  to  comply  with 
an  order  of  court  to  pay  over  money. 
Mortenson  v  Bergthold,  64  Neb.  208. 
89  N.  W.  742;  Smith  v.  Rhodes,  68 
Ohio  St.  500,  68  N.  E.  7. 

Compare  Keegan  v.  Smith,  67  N. 
Y.  Supp.  281  affirmed  60  App.  Div. 
(N.  Y.)  168,  70  N.  Y.  Supp.  260,  as 
to  burden  of  proof  to  escape  liabil- 
ity. 

Refusal  to  comply  with  a  final 
judgment  of  court  is  a  breach  ren- 
dering sureties  liable.  Greer  v.  Mc- 
Neal, 11  Okla.  519,  526,  69  Pac.  891, 
893. 

Where  order  not  entered  no 
breach.  Robbins  v.  Burridge,  128 
Mich.  25,  87  N.  W.  93,  8  Det.  Leg.  N. 
509. 

Failure  to  pay  judgment  debts; 
may  show  lawful  use  of  assets  of 
estate.  Mclntire  v.  Cottrell  185 
Mass.  178,  69  N.  E.  1091. 

Payment  of  claims  without  an  or- 
der of  court  is  a  breach  for  which 
recovery  may  be  had  on  the  bond. 
State  V.  Taylor,  100  Mo.  App.  481, 
74  S.  W.  1032. 


273  Bonds  Under  Judicial  iSanction.  §  254 

even  if  such  acts  are  ordered  to  be  done  by  the  court  f^  nor  when 
the  acts  of  the  principal  are  personal  and  not  official.'^  So  where 
the  agent  of  a  creditor  of  the  decedent  takes  out  letters  of  ad- 
ministration pursuant  to  a  power  of  attorney  given  him  by  his 
principal,  the  sureties  on  his  bond  are  not  liable."  A  failure  of 
the  principal  to  make  proper  collection  of  assets  is  a  maladminis- 
tration for  which  the  sureties  are  liable  f*  and  so  where  the  execu- 
tor neglects  to  follow  the  directions  in  the  will ;'"  and  so  where 
he  neglects  to  sell  the  goods  of  the  estate  when  necessary  ;^*'  and 
when  he  fails  to  take  proper  security  for  goods  sold  on  credit.'^ 

If  his  acts  of  omission  work  no  injustice  to  the  estate  his  sure- 
ties are  not  liable  ;^^  of  if  his  acts  were  performed  at  the  request 
of  the  parties  in  interest.'^ 

§  254.  Same  Person  Administrator  of  One  Estate  and  Execu- 
tor of  Another. — One  person  can  be  the  administrator  of  one 
estate  and  executor  of  another.  In  such  case  the  liability  of  his 
sureties  may  be  complicated.  But  as  a  general  rule,  one  set  of 
sureties  are  not  liable  for  the  defaults  as  to  the  other  estate.  So 
the  sureties  on  his  administrator's  bond  do  not  incur  any  liability 
in  respect  to  his  acts  as  executor  of  the  other  estate,  though  the 
testator  and  the  intestate  were  partners  in  business.  Such  relation 
does  not  affect  the  right  of  the  creditor  of  the  intestate  to  have  his 
separate  estate  applied  to  the  payment  of  his  individual  debts,  and 

71.  Nelson  v.  Woodbury,  1  Me.  251.       Utah. — Jenkins  v.  Jensen,  24  Utah 

72.  Mississippi.— Davis  v.  Hoopes,    108,  66  Pac.  673. 

33  Miss.  173.  Vermont.— Lyon  v.  Osgood,  58  Vt. 

New  Hampshire. — Merrill  v.  Har-  707,  7  Atl.  5. 

ris,  26  N.  H.  142.  Virg-iiiia. — Lacy     v.     Stamper,     27 

Jforth   Carolina, — McLean   v.   Mc-  Gratt.  421. 

jLean,  88  N.  C.  794.  75.  Sanford   v.    Oilman,    44   Conn. 

Rhode  Island.— Sarle  v.  Court,   7  461;    Heady   v.    State,   60    Ind.   316; 

R.   I.   270.  Prescott  v.  Pitts,  9  Mass.  376. 

South       Carolina, — Kennedy       v.  76.  State  v.  Scott,  12  Ind.  529. 

Adickes,  37  S.  C.  174.  77.  White  v.  Moe,  19  Ohio  St.  37. 

73.  Moodie  v.  Penman,  3  Desaus.  78.  Rison  v.  Young,  7  Martin  N. 
(S.  C.)  482.  S.  (La.)   298;  State  v.  Smith,  68  Mo. 

74.  California. — Sanchez    v.   Fors-  641. 

ter,  133  Cal.  614,  65  Pac.  1077.  79.  Brazer      v.      Clark      5      Pick. 

Connecticut. — Butler  v.  Sisson,  49  (Mass.)  96;  Homes  v.  O'Connor,  9 
Conn.  580.  Tex.  Civ.  App.  454,  29  S.  W.  236. 

18 


§  255  Suretyship  and  Guaranty.  274r 

does  not  make  the  sureties  on  the  administrator's  bond  liable  for 
waste  committed  by  him  as  executor.*'^  But  if  one  estate  is  indebted 
to  the  other,  the  waste  of  the  debtor  estate,  instead  of  paying  over 
to  the  creditor  estate,  makes  the  sureties  of  the  creditor  estate  liable 
for  such  default,*'  because  the  debtor  estate  was  assets  in  his  hands 
to  pay  the  creditor  esta;te. 

§  255.  Executor  or  Administrator  Acting  in  Other  Fiduciary 
Capacity. — An  executor  or  administrator  often  becomes  a  trus- 
tee or  guardian  of  parties  interested  in  the  estate,  and  it  may  be- 
come difficult  to  place  the  liability  on  the  two  sets  of  sureties.  The 
general  rule  is  the  administrator's  or  executor's  bond  only  covers 
his  duties  acting  in  that  capacity,  and  not  those  which  are  in  an- 
other fiduciary  character.*^  Thus,  where  the  administrator  is  also 
guardian,  the  law  will  adjudge  the  ward's  portion  of  the  property 
then  in  his  hands  to  be  in  his  possession  in  the  capacity  of  guar- 
dian after  the  time  limited  by  law  for  the  settlement  of  the  estate,, 
whether  a  final  account  has  been  passed  upon  by  the  proper  court 
or  not,  upon  the  principle  that  what  the  law  has  enjoined  upon  him 
to  do,  it  shall  be  considered  as  done,  and  from  that  time  he  holds 
the  ward's  proportion  of  the  property  by  operation  of  law  in  that 
character  into  which  he  would  be  entitled  to  receive  it  upon  the 
final  completion  of  his  trust  as  executor  or  administrator;  by  oper- 
ation of  law  there  was  a  transmutation  of  the  same  to  him  as  guar- 
dian, and  he  no  longer  holds  the  same  as  administrator  or  execu- 
tor.*^ But  in  other  jurisdictions  it  is  held  that  until  the  adminis- 
trator or  executor  has  rendered  an  account  or  done  some  act  to 
indicate  that  he  has  transferred  the  property  from  himself  in  the 
one  capacity  to  himself  in*  the  other  character,  he  acts  as  executor  or 
administrator,  and  his  sureties  are  therefore  liable  accordingly.*^ 

80.  Norman  v.  Buckner,  135  U.  S.  Gill.  &  J.  220;  Woolley  v.  Price,  86 
500,  10  S.  Ct.  835,  34  L.  Ed.  252.  Md.  176,  37  Atl.  644. 

81.  Morrow  v.  Penton,  8  Leigh  Massachusetts. — White  v.  Ditson, 
(Va.)    54.  140  Mass.  351,  4  N.  E.  606. 

82.  Bell  V.  People,  94  111.  230.  Michigan.— Cranson  v.  Wilsey,  71 

83.  United      States.  —  Pratt      v.  Mich.  356,  39  N.  W.  9. 

Northam,  5  Mason  95;  Taylor  v.  Del-  84.  Cluff  v.  Day,  124  N.  Y.  195,  26 

bois,  4  Mason  131.  N.  E.  306;    Potter  v.  Ogden,  136  N. 

Illinois.— Bell    v.    People,    94    111.  Y.  384,  33  N.  E.  228;  Gilmer  v.  Baker^ 

230.  24  W.  Va.  72. 

Maryland. — Watkins    v.    Shaw,    2/ 


275  Bonds  Undee  Judicial  Sanctioa'.        §§  256,  257 

If  the  bond  covers  all  of  the  duties  imposed  by  the  law,  then  the 
sureties  are  liable  for  the  faithful  performance  of  the  principal's 
duties  in  their  fiduciary  trust  unless  contrary  to  statute.^^ 

§  256.  Failure  to  Return  Inventory  or  to  Account. — If  the 
administrator  or  executor  fails  to  return  an  inventory  as  s«pecified 
by  law,  he  is  in  default  for  which  his  sureties  are  liable.*®  The 
extent  of  the  liability  for  a  breach  of  the  condition  to  file  an  in- 
ventory, is  the  amount  that  may  be  found  equitably  due  to  any  one 
who  is  injured  thereby.*^  If  no  damages  result,  then  there  is  no 
injury  and  no  recovery  can  be  had.^ 

§  257.  Release  of  Sureties. — The  sureties  on  an  administra- 
tor's or  executor's  bond  will  be  released  whenever  their  liability  is 
changed  or  increased  without  their  assent.  Thus,  a  secret  agree- 
ment between  the  distributee  of  an  estate  and  the  administrator 
thereof,  that  the  administrator  may  use  the  fund  in  his  private 
business,  operates  to  discharge  the  sureties  upon  his  bond.^^  The 
principal  has  no  right  to  convert  the  assets  to  his  private  use,  nor  to 
speculate  with  them,  nor  to  invest  them  in  trade  or  manufacturing 
business,  either  upon  his  own  account  or  that  of  the  estate.  If  he 
does  he  is  liable ;  and  if  the  beneficiary  agrees  to  such  maladmin- 
istration, the  sureties  are  released.^^  Any  alteration  of  the  bond 
without  the  sureties'  consent  will  discharge  them.^^  A  discharge  of 
the  principal  will  also  discharge  his  sureties.®^    And  the  reappoiut- 

80.  State  V.  Wilmer,  65  Md.  178,  3  Pennsylrania. — Commonwealth    v. 

Atl.   252;    Walker  v.   Patillo,   7   Lea  Bryan,  8  Serg.  &  R.  128. 

(Tenn.)  449.  West      Tirginia. — Thompson       v. 

86.  California.— See      Sanchez      v.  Nowlin,  51  W.  Va.  346,  41  S.  E.  178. 

Forster,  133  Cal.  614,  65  Pac.  1077.  87.  State  v.  French,  60  Conn.  478, 

Illinois.— People  v.  Hunter,  89  111.  23  Atl.  153. 

392.  88.  Reynolds  v.  Reynolds,  11  Ala. 

Indiana. — State   v.    Scott,    12    Ind.  1023;     State    ex    rel.    Clamrock    v. 

529.  Gregory,  119  Ind.  503,  22  N.  E.  1. 

Massachusetts.  —  Forbes     v.     Mc-  89.  Rutter  v.  Hall,  31  111.  App.  647. 

Hugh,  152  Mass.  412,  25  N.  E.  622;  90.  Ward    v.    Tinkham,    65    Mich. 

Walker  v.  Hall,  1  Pick.  20.  695,  32  N.  W.  901. 

Missouri. — Sherwood    v.    Hill,    25  91.  Howe     v.     Peabody,     2     Gray 

Mo.  391.  (Mass.)  556. 

Ohio.— Mighton  v.  Scott,  38  Ohio  92.  People  v.  Lott,  27  111.  215. 
St.  650. 


§  258 


Suretyship  and  Guaranty. 


276 


ment  of  a  resigning  administrator  with  new  bond  will  discbarge  the 
sureties  on  his  first  bond.^^  Sureties  are  generally  liable  up  to  the 
time  of  the  discharge  of  their  principal  f^  but  if  the  discharge  is 
through  fraud,  neither  the  principal  or  surety  is  relieved  from 
liability/'"' 

A  surety  is  estopped  to  deny  in  an  action  on  the  bond  the  valid- 
ity of  the  appointment  of  his  principal  ^*'  or  that  the  will  was  duly 
probated.'^'  The  date  of  the  final  decree  of  distribution  of  an 
estate  is  the  time  from  which  the  period  of  limitations  prescribed 
by  statute  begins  to  run.^^ 

§  258.     When  Right  of  Action  Arises  Against  Sureties. — It  is 

the  general  rule  that  the  liability  of  sureties  arises  on  an  adminis- 
trator's or  executor's  bond  after  default  of  their  principal  has  been 
fixed,  and  then  only  under  the  terms  of  the  obligation  entered  into 
by  them.^^  But  in  some  jurisdictions,  generally  controlled  by  stat- 
ute, it  is  not  essential  to  a  right  of  recovery  on  such  bond  that  de- 
vastavit shall  have  been  established  against  the  administrator  or 
executor.-^ 


93.  Steele  v.  Graves,  68  Ala.  17. 
See,  also,  Veach  v.  Rice,  131  U.  S. 

293,  9  S.  Ct.  730,  33  L.  Ed.  163. 

94.  Potter  v.  Ogden,  136  N.  Y.  384, 
33  N.  E.  228;  Shelton  v.  Cureton,  3 
McCord  L.    (S.  C.)    412. 

95.  Pollock  V.  Cox,  108  Ga.  430,  34 
S.  E.  213. 

96.  Nash  v.  Sawyer,  114  Iowa  742, 
87  N.  W.  707;  Hoffman  v.  Fleming, 
66  Ohio  St.  143,  64  N.  E.  63. 

97.  Hoffman  v.  Fleming,  66  Ohio 
St.  143,  64  N.  E.  63. 

98.  Hall  V.  Cole,  71  Ark.  601,  76 
S.  W.  1076;  Ganser  v.  Ganser,  83 
Minn.  199,  86  N.  W.  18. 

99.  Massachusetts.  —  Mclntire  v. 
Cottrell,  185  Mass.  178,  69  N.  E. 
1091;  Choate  v.  Jacobs,  136  Mass. 
297. 

Mjclugan. — Grady  v.  Hughes,  80 
Mich.   184,  44  N.  W.  10.50. 

New  York— Potter  v.  Ogden,  136 
N.   Y.  384,  33  N.  E.  228;    Garvey   v. 


United  States  Fidelity  &  Guaranty 
Co.,  77  App.  Div.  391,  79  N.  Y.  Supp. 
337. 

Ohio. — Dawson  v.  Dawson,  25 
Ohio  St.  443. 

Pennsjivania. — Boyd  v.  Common- 
wealth, 36  Pa.   St.  355. 

Must  be  an  accounting  before 
suit.  Reed  v.  Hume,  75  Utah  248, 
70  Pac.  998. 

Compare  Judge  of  Probate  v.  Lee, 
72  N.  H.  247,  56  Atl.  188. 

1.  Georgia. — Morgan  v.  West,  43 
Ga.  275. 

Illinois. — Tucker  v.  People,  87  111. 
76. 

Indiana. — State  v.  Johnson,  7 
Blackf.  520. 

Kentucky. — Clarkson  v.  Common, 
wealth,  2  J.  J.  Marsh  19. 

Missouri. — State  v.  Shelby,  75  Mo. 
482. 

Texas. — Francis  v.  Northcote,  6 
Tex.  185. 


277  Bo>-Ds  Under  Judicial  Sanction.  §  259 

Such  action  may  be  brought  by  a  creditor  of  the  estate,  by  a  lega- 
tee, distributee,  or  other  interested  person  in  the  assets  who  has 
been  injured  by  the  default  of  the  principal.^ 

An  administrator  de  bonis  non  cannot  sue  at  common  law  on  a 
bond  of  his  predecessor.^  But  this  rule  has  been  changed  by  statute 
in  some  jurisdictions,  so  now  such  principal  can  sue  at  law  his 
predecessor.* 


§  259.     Sureties   of    Guardian — General    Liability. — It    is    the 

duty  of  sureties  on  a  guardian's  bond  to  make  inquiries  and  to  see 
that  their  principal  discharges  his  obligations  as  guardian,  whether 
he  be  solvent  or  insolvent.^  Because  the  object  of  requiring  a  bond 
with  sureties  is  to  protect  the  ward  from  the  fraud  and  dishonesty 
of  his  guardian,  no  less  than  against  his  insolvency ;  to  allow  the 
sureties  to  escape  liability  from  the  very  fraud  of  their  principal 
which  he  was  under  contract  obligation  not  to  commit  would  be  to 
render  such  unavailing  as  a  protection  to  the  ward  and  defeat  the 
purpose  of  the  law  in  requiring  guardians  to  give  bond  with  se- 
curity.^ 

Guardianship  is  a  personal  trust.  The  guardian  must  exercise 
at  least  ordinary  and  reasonable  care,  and  make  the  property  of 
the  ward  productive,  and  this  duty  is  a  personal  one,  which  cannot 
be  delegated,  and  for  the  performance  of  which  his  sureties  are 
answerable.  iSo  the  guardianship  terminates  with  the  death  of  the 
guardian.  The  duty  to  account  continues  and  the  sureties  cannot 
discharge  themselves  only  by  showing  that  in  accordance  with  the 
terms  of  the  bond,  the  principal,  during  the  time  the  estate  was 
committed  to  his  care,  has  faithfully  administered  his  trust.  They 
are  bound  to  answer  for  his  mismanagement  of  the  estate  up  to  the 
time  of  his  death,  and  to  account  when  called  upon  to  do  so,  for  any 
damages  resulting  to  his  ward  or  his  ward's  estate  in  consequence 

2.  State  V.  Scott,  12  Ind.  529;  4.  Marsh  v.  People,  15  111.  284; 
Rawson  v.  Piper,  36  Me.  98;  Good-  Palmer  v.  Pollock,  26  Minn.  433,  4 
kin  V.  Hoit,  3  N.  H.  392;    Boyle  v.    N.  W.  1113. 

St.  John.  28  Hun  (N.  Y.)  454.  5.  Forrester  v.  Steele,  46  Md.  154. 

3.  Marsh  v.  People,  15  111.  284;  6.  Gillett  v.  Wiley,  126  111.  310,  19 
Lucas  V.  Donaldson,  117  Ind.  139,  19    N.  E.  287. 

N.  E.  758;   Douglas  v.  Day,  28  Ohio 
St.  175. 


259 


Suretyship  and  Guaranty. 


278 


of  the  mismanagement  of  the  ward's  property  during  the  lifetime 
of  the  guardian^ 

If  a  guardian  is  appointed  by  a  court  without  jurisdiction  and 
gives  a  bond,  and  then  takes  possession  of  the  ward's  property,  his 
sureties  are  liable,  as  on  a  voluntary  bond,  for  the  assets  converted 
by  the  guardian/ 

A  guardian  and  his  sureties  are  accountable  for  commission  of 
defaults,  and  for  omission  of  duty.  Hence,  they  are  not  only  liable 
for  money  and  assets  collected  and  taken  possession  of  by  the  guar- 
dian, but  also  for  money  and  assets  which  he  could  secure  by  proper 
or  ordinary  diligence.^  If  the  guardian  converts  the  ward's  money 
to  his  own  use  it  is  a  breach  of  the  condition  of  the  bond  for  which 
his  sureties  are  respojisible/'' 

But  a  surety  is  held  not  to  be  liable  for  a  defalcation  occurring 
before  the  execution  of  the  bond.^^  And  a  failure  to  comply  with 
an  invalid  order  of  court  does  not  constitute  a  breach  of  the  bond.^^ 

Where  a  guardian  has  loaned  funds  of  the  estate  to  himself  and 
given  security  therefor  the  sureties  are  entitled  to  a  credit  in  an 
action  against  them  of  such  sum  as  was  realized  on  the  security.^^ 


7.  Garrett  v.  Reese,  99  Ga.  494,  27 
S.  E.  750;  Ames  v.  Dorrok,  76  Miss. 
187,  23  So.  768. 

8.  Hazelton  v.  Douglas,  97  Wis. 
214,  72  N.  W.  637;  United  States  v. 
Tingey,  5  Pet.  (U.  S.)  115,  8  L.  Ed. 
€6. 

9.  Ames  v.  Williams,  74  Miss.  404, 
29  So.  877;  State  v.  Barger,  92  Mo. 
App.  631;  In  re  Guardianship  of 
Fardette,  86  App.  Div.  (N.  Y.)  50,  83 
N.  Y.  Supp.  521;  Jennings  v.  Parr, 
62  S.  C.  306,  40  S.  E.  683. 

A  suroty  on  a  guardian's  bond  is 
only  liable  for  such  personal  prop- 
erty of  his  wards  as  come  to  his 
hands  by  virtue  of  his  office.  He 
may  not  sell  the  ward's  real  estate 
without  the  aid  of  the  chancellor 
and  it  can  then  be  sold  only  in  strict 
compliance  with  the  statutory  pro- 
visions regulating  such  an  act.  The 
covenant  of  a  surety  being  that  the 


guardian  will  discharge  his  trust  as 
required  by  law,  this  is  the  measure 
of  his  responsibility,  and  the  surety 
is  liable  on  the  bond  for  sucn. 
moneys  as  the  guardian  had  a  legal 
right  to  receive  by  virtue  of  his  of- 
fice. Rudy  V.  Rudy,  145  Ky.  245, 
140  S.  W.  192. 

Liable  for  note  surrendered  by 
guardian  to  maker.  Lincoln  Trust 
Co.  V.  Wolff,  91  Mo.  App.  133. 

10.  Irwin  v.  Backus,  25  Cal.  221; 
Deegan  v.  Deegan,  2  Nev.  185,  37 
Pac.  360. 

11.  Howe  V.  White,  162  Ind.  74,  69 
N.  E.  684. 

12.  Harter  v.  Miller,  67  Kan.  468, 
73  Pac.  74. 

13.  Hutson  V.  Jenson,  110  Wis.  26, 
85  N.  W.  689. 

See  Freedman  v.  Vallie  (Tex.  Civ. 
App.  1903),  75  S.  W.  322. 


279  Bonds  Undee  Judicial  Sanction.       §§  259a,  260 

§  259a.  Bond  Not  Complying  With  Statute. — In  the  case  of 
a  guardian's  bond  it  is  decided  that  even  if  it  is  in  its  terms  so 
far  a  departure  from  a  statute  in  regard  to  such  undertakings  as  to 
render  it  defective  as  a  statutory  bond  it  may  be  upheld  as  a  com- 
mon law  bond  independent  of  the  statutory  provision,  there  being 
nothing  in  the  statute  rendering  such  bond  void  or  voidable  for  non- 
compliance therewith.^* 


§  260.  Giving  Additional  Security. — Whenever  a  second  bond 
is  required,  not  at  the  instance  of  the  surety  on  the  first,  but  at  the 
instance  of  one  of  the  parties,  and  is  intended  as  a  mere  additional 
or  cumulative  bond,  and  not  subsidiary,  no  discharge  of  the  surety 
on  the  first  bond  takes  place.  Such  bonds  are  generally  required 
when  additional  money  is  to  come  to  the  hands  of  the  guardian, 
such  as  pension  money  or  money  from  another  State,  or  a  legacy  to 
the  ward.^''  In  most  jurisdictions  where  such  additional  bond  is 
required,  the  sureties  in  the  new  bond  are  considered  as  co-sureties 
with  those  on  the  first  bond,  and  equally  liable  with  them  for  the 
whole  giiardianship  from  its  creation.^'^  And  if  there  are  sureties 
in  different  amounts,  they  are,  as  between  themselves,  compellable 
to  contribute  in  proportion  to  the  penalties  of  their  respective 
bonds." 

Thus,  under  the  general  rule  where  a  resident  guardian  is  re- 
quired to  give  an  additional  bond  for  the  proceeds  coming  to  his 
hands  from  a  foreign  administrator,  the  second  bond  is  not  subsidi- 

14.  United  States  Fidelity  &  Guar-  8  N.  E.  117;  Loring  v.  Bacon,  3  Gush, 
anty  Go.   (Wyo.  1912),  121  Pac.  531.  465. 

15.  Bush  V.  State,  19  Ind.  App.  Mississippi. — State  v.  Hull,  53 
523;  Middleton  Adm'r  v.  Hensley,  21  Miss.   626. 

Ky.  Lan.  Rep.  703,  52  S.  W.  974.  rennsylrania. — Gommonwealth    v. 

16.  Illinois. — Ammons    v.    People,    Cox,  36  Pa.  St.  442. 

11  111.  6.  Tennessee.— McGlothin   v.   Wyatt, 

Indiana. — Stevens    v.    Tucker,    87  1  Lea  717. 

Ind.  109;  Allen  v.  State,  61  Ind.  268.  17.  Loring     v.     Bacon,     3     Gush. 

Kentucky. — Hutchcraft  v.  Shrout,  (Mass.)    465;    Jones    v.    Blanton.    6 

1  Mon.  206.  Ired.  L.  (N.  G.)  115;  Jones  v.  Hays, 

Massachusetts. — Forbes     v.     Har-  3   Ired.   L.    (N.  G.)    502;    Deering  v. 

rington,  171  Mass.  386,  50  N.  E.  641;  Winchester,  2  Bos.  &  P.  270,  1  Cox 

Brooks  V.  Whitmore,  142  Mass.  399,  318;  Pendlebury  v.  Walger,  4  Younge 

&  Coll.  Ul. 


§  200  Suretyship  and  Guaranty.  2S0 

arj  to  the  first,  but  is  primary  security,  like  the  first,  for  money  re- 
ceived. The  giving  of  the  second  did  not  annul  the  first ;  both  con- 
tinue, and  the  two  sets  of  sureties  are  liable  for  the  guardian's  de- 
faults ;^^  and  such  bond  is  additional  and  cumulative,  and  for  the 
entire  guardianship,  and  the  obligors  are  liable  for  the  vrhole  mal- 
administration of  the  guardian/^  In  the  absence  of  affirmative 
proof  to  that  eflect,  there  can  be  no  presumption  that  the  parties, 
or  either  of  them,  would  be  benefited  by  discharging  the  sureties 
on  the  first  bond  merely  because  a  new  bond  was  required  and 

9ft 

given. 

But  there  is  another  class  of  cases  which  are  not  wholly  in  ac- 
cord with  this  doctrine.  'So  it  is  held  that  the  liability  of  a  surety 
on  a  new  bond  executed  by  a  guardian  does  not  extend  to  previous 
defaults  of  his  principal.  Thus,  where  a  guardian  had  converted 
his  ward's  money  before  giving  the  second  bond,  the  sureties  on  the 
latter  bond  are  not  liable  for  such  conversion  ;^^  that  is,  sureties 
on  the  second  bond  are  not  made  liable  for  past  defaults  of  the 
principal  unless  the  bond  so  prescribes  or  the  statute  makes  them 
responsible.^^  The  surety  on  the  second  bond  is  not  liable  unless  the 
obligation  indicates  the  assumption  of  liability  for  past  defalca- 
tions.^* But  it  is  held,  if  the  guardian  has  in  his  possession  the 
money  converted  before  the  giving  of  the  second  bond,  the  sureties 
on  the  second  bond  are  liable  for  such  default.^^ 

In  some  jurisdictions,  periodical  statutory  bonds  are  given  and 
required,  and  such  bonds  are  held  to  be  cumulative  under  the  stat- 
ute, though  contribution  should  be  in  inverse  order  to  that  of  the 
execution.^^ 

18.  State      ex      rel.      Jaseph      v.  21.  Lowry  v.   State,   64   Ind.   421; 
Mitchell,  132  Ind.  461,  32  N.  E.  86;  Williams  v.  State,  89  Ind.  570. 
Baum  V.  Lyman,  72  Miss.  932,  18  So.  22.  State  v.  Jones,  89  Mo.  470,  1 
428.  S.  W.  355. 

19.  Douglass  V.  Kessler,  57  Iowa  23.  Farrar  v.  United  States,  5  Pet. 
63,  10  N.  W.  313;  Clark  V.  Wilkinson,  (U.  S.)  372,  8  L.  Ed.  .159;  United 
59  Wis.  543,  18  N.  W.  481.  States  v.  Boyd,  15  Pet.    (U.  S.)    187, 

See,    also,    Pinkstaff   v.    State,    59  206,    10    L.    Ed.    706;    Sebastian    v. 

111.  148;  Ennis  v.  Smith,  14  How.  (U.  Bryan,  21  Ark.  447;  State  v.  Shack- 

S.)  400,  14  L.  Ed.  472.  leford,  56  Miss.  648. 

Compare    Sayers    v.    Cassell,    23  24.  Parker  v.  Medsker,  80  Ind.  155. 

Gratt.  (Va.)   525.  25.  Crook     v.     Hudson,     4      Lea 

20.  Stewart  v.  Johnson,  87  Ga.  97,  (Tenn.)  448;  Jamison  v.  Cosby,  11 
13  S.  E.  258.  Humph.   (Tenn.)    273. 


281  Bonds  Under  Judicial  Sanction.        §§  261,  262 

§  261.  Guardian  Selling  Real  Estate, — In  most  jurisdictions 
the  general  bond  does  not  cover  sales  made  of  the  ward's  real 
estate.  In  such  case  the  guardian  is  required  to  give  a  new  bond 
to  answer  for  the  proceeds  of  such  sales.  The  duties  of  the  ad- 
ministrator and  guardian  are  prescribed  by  statute,  and  the  trust 
created  by  their  appointment  extends  only  to  the  duties  imposed 
by  statute ;  and  where  they  file  bonds  and  qualify  and  take  upon 
themselves  the  administration  of  the  personal  assets  of  such  trusts, 
the  sureties  on  the  bonds  filed  are  liable  only  for  the  faithful  ac- 
counting of  such  personal  assets.  So  where  they  apply  to  and  ob- 
tain an  order  of  court  to  sell  or  rent  real  estate,  and  file  an  addi- 
tional bond  as  a  condition  precedent  to  such  sales  or  renting,  the 
sureties  on  such  bonds  are  alone  liable  for  the  funds  resulting  there- 
from,  and  the  sureties  on  the  general  bond  are  not  liable  for  such 
sales.^®  The  sureties  on  the  first  or  general  bond  of  the  guardian 
are  not  liable  for  real  estate  sales  by  a  guardian  imder  the  second 
bond.^^ 

And  so  the  sureties  on  the  last  bond  are  liable  for  failure  of  their 
principal  to  carry  out  specific  objects  for  which  such  sale  was 
authorized.^^ 

§  262.  Discharge  of  Surety. — So  long  as  the  guardian  con- 
tinues in  his  official  capacity,  his  sureties  can  only  be  discharged 
from  liability  by  applying  to  the  court  and  complying  with  the 
provisions  of  the  law.^^     And  such  discharge  dates  from  the  time 

26.  People  to  Use  Sterling  v.  Kansas. — Morris  v.  Cooper,  35 
Huffman,  182  111.  390,  55  N.  E.  981;    Kan.  156. 

Worgang  v.  Clipp,  21  Ind.  119;  Kes-  Massachnsetts. — Fay  v.  Taylor,  11 

ter  V.  Hill,  42  W.  Va.  611;   Findley,  Mete.  529. 

42  W.  Va.  372.  Missouri.— State   v.    Peterman,   66 

Surety  on  general  bond  not  liable  Mo.  App.  257. 

for  proceeds  of  sale  of  real  estate,  Ohio. — See  Swisher  v.  MeWhinney, 

there  being  nothing  in  the  bond  to  64  Ohio  St.  343,  60  N.  E.  565. 

be  construed  as  creating  such  lia-  Pennsylvania. — Blauser    v.    Diehl, 

b'lity.     Commonwealth  v.  American  95  Pa.  St.  350. 

Bonding  &  Trust  Co.,  16  Pa.  Super.  Compare  Hart  v.  Stribling,  21  Fla. 

Ct.  570.  136. 

27.  Indiana.— Colburn  v.  State,  47  28.  Mattoon  v.  Cowing,  13  Gray 
Ind.  310.  (Mass.)    387;    McKim   v.   Morse,   130 

Iowa. — Bunce  v.    Bunce,   69    Iowa    Mass.   439. 
333.  29.  Rush    v.    State,    19    Ind.    App. 

523. 


^  263  Suretyship  and  Guar^vnty.  282 

of  the  approval  of  the  new  bond,  when  the  prior  surety's  liability 
ceases  as  to  subsequent  acts  of  the  guardian.^''  And  the  discharge 
of  one  surety  releases  the  co-surety  unless  he  remains  a  surety  by 
consent  or  agreement. ^^ 

§  263.  Termination  of  Surety's  Liability. — The  surety's  lia- 
bility terminates  when  the  guardian  has  faithfully  discharged  his 
duties  and  made  an  accounting  to  the  proper  court  and  been  re- 
leased. But  the  sureties'  liability  is  not  discharged  by  the  expira- 
tion of  the  guardianship  until  a  final  settlement  and  proper  ac- 
counting;"^ nor  is  the  liability  extinguished  by  the  death  of  the 
surety,  for  then  his  estate  is  responsible  in  his  place/^  and  his 
representatives  must  be  made  a  party  to  a  suit.^*  And  unless  there 
is  a  statute  controlling  the  time  to  bring  suit,^"*  the  liability  of  the 
surety  continues  against  him  and  his  personal  representatives  un- 
til the  statute  of  limitations,  as  in  other  cases,  bars  the  action  on 
the  bond.^^  And  the  limitation  begins  to  run  from  the  time  when 
the  guardian  settles  his  account  in  the  proper  court,  and  not  from 
the  date  of  his  informal  accounting  with  the  ward;  the  law  directs 
that  it  be  reckoned  from  the  guardian's  discharge.^^  The  liability 
is  limited  to  what  the  guardian  has  legally  done  with  diligence 
during  his  term  of  office  and  not  for  anything  done  thereafter.^^ 

Where  the  statnte  requires  notice  67  Pac.  1089;  Allen  v  Kelly,  171  N. 

to  all  persons  interested  to  obtain  Y.  1,  63  N.  E.  52S,  rev'g  55  App.  Div. 

a  discharge  there  must  be  notice  to  454,  67 -N.  Y.  Supp.  97. 

the  ward  and  next  of  kin.     Rice  v.  34.  Lynch  v.  Rotan,  39  111.  14. 

Watson,  129  Mich.  520,  89  N.  W.  336,  35.  State  v.  Hughes,  15  Ind.  104; 

8  Dot.  Leg.  N.  355.  Loring    v.    Alline,    9    Cush.    (Mass.) 

30.  Dempsey    v.    Fenno,    16    Ark.  G8. 

491;     State    v.    Page,    62    Ind.    209;  36.  Ragland  v.  Justices,  10  Ga.  65; 

Hammond      v.      Beasley,      15      Lea  Bonham    v.    People,    102    111.    434; 

(Tenn.)   618.  Goble  v.  Simeral,  67  Neb.  276,  93  N. 

31.  Spencer  v.  Houghton,  68  Col.  W.   235;    Freedman   v.  Vallie    (Tex. 
82;  Tyner  v.  Hamilton,  51  Ind.  250;  Civ.  App.  1903),  75  S.  W.  322. 
Frederick    v.    Moore,    13    B.    IMon.  Statute    of    limitation    bars    suit. 
(Ky.)    470.  Presley  v.  Weakley,  135  Ala.  517,  33 

32.  Yost    V.    State,    80    Ind.    330;  So.  434. 

Higgins  V.  State,  87  Ind.  282.  37.  Nunnery  v.  Day,  64  Miss.  457, 

See  Johnson   v.    Johnson,   24   Ky.  1  So.  636;   Marlow  v.  Lacy,  68  Tex. 

Law  Rep.  16,  68  S.  W.  14.  154,  2  S.  W.  52. 

33.  Voris  v.  State,  47  Ind.  345.  38.  Ordinary  v.  Smith,  55  Ga.  15. 
See  Zurfluh  v.  Smith,  135  Cal.  644, 


283  Bonds  Under  Judicial  Sanction.        §§  2G4,  2G5 

Thus,  money  paid  to  the  guardian  after  the  ward  reaches  his  ma- 
jority, does  not  make  the  surety  liable  for  any  malfeasance  of  such 
discharged  guardian."^ 

§  264.  When  Action  Upon  the  Bond  Accrues. — The  general 
rule  is  that  action  cannot  be  brought  upon  the  bond  until  the 
amount  of  the  guardian's  liability  has  been  ascertained  by  a  court 
of  competent  jurisdiction  at  his  final  settlement.^"  But  this  gen- 
eral rule  has  been  changed  in  many  jurisdictions,  and  whenever 
the  condition  of  the  bond  is  violated,  suit  may  be  brought  on  such 
bond  and  prosecuted  to  final  judgment  against  the  guardian  or 
sureties  on  his  bond,  without  first  obtaining  judgment  against  the 
guardian  alone.^^ 

And  the  delivery  of  the  property  and  money  to  the  successor  as 
required  by  statute  is  held  not  to  be  a  condition  precedent  to  an 
action.^^ 

§  265.  Estoppel  by  Judgment  Against  Principal. — ^An  order 
from  the  probate  court  finding  the  amount  due  from  the  guardian 
to  the  ward  is  conclusive  upon  the  guardian  and  his  sureties  on  the 
bond,  and  can  only  be  impeached  for  fraud  or  mistake.*^    The  gen- 

39.  Chapin  v.  Livermore,  13  Gray  Must  be   settlement  of  accounts. 

(Mass.)      561;      Commonwealth      v.  Pinnell  v.  Hinkle,  54  W.  Va.  119,  46 

Pray  125  Pa.  St.  542,  17  Atl.  450.  S.  E.  171. 

40.  Georgia. — Forrester  v.  Vason,  41.  Bonham  v.  People,  102  111. 
71  Ga.  49.  434;    Wolfe   v.   State,   59   Miss.   338; 

Iowa.— Gillespie   v.   See,   72   Iowa  State  v.  Slevin,  93  Mo.  253,  6  S.  W. 

345,  33  N.  W.  676.  68;  Call  v.  Ruflin,  1  Call  (Va.),  333; 

Massaclmsetts.— Long     v.     Cope-  Sage  v.  Hammonds,  27  Gratt.   (Va.) 

land,   182   IMass.   332,   65   N.  E.   384;  651. 

Murray  v.  Wood,  144  Mass.  195,  10  42.  State  v.  Berger,  72   Mo.   App. 

N.  E.  822.  631. 

Nebraska. — Bisbee  v.  Gleason,  21  43.  California. — Zurfluh  v.   Smith, 

Neb.  534,  32  N.  W.  578.  135  Cal.  644,  67  Pac.  1089. 

New   York.— Perkins   v.    Stimmel,  Illinois. — Ryan  v.  People,  165  111. 

114  N.  Y.  359,  21  N.  E.  729.  143,  46  N.  E.  206;   Gillett  v.  Wiley, 

Ohio.— See   Wegner   v.   Wiltse,   23  126  111.  310,  19  N.  E.  287. 

Ohio  C.  C.  R.  302.  Indiana. — State  ex  rel.  Favorite  v. 

Pennsylvania.  —   Shollenberger's  Slanter,  80  Ind.  597. 

Appeal,  21  Pa.  St.  337.  Iowa.— Chase  v.  Wright,  116  Iowa 

Wisconsin.— Kugler    v.    Prien,    62  555,  90  N.  W.  357. 

Wis.  248,  22  N.  W.  396.  Minnesota.— Jacobson    y.     Ander- 


§  200  Suretyship  and  Guaranty.  284 

erul  rule  is  that  the  surety  is  concluded  by  the  judgment  against 
his  principal."  However,  in  some  States  such  judgment  is  only 
conclusive  against  the  guardian,  and  pritna  facie  only  against  the 
surety.*^ 

A  settlement  with  the  ward  after  he  reaches  his  majority,  if  it 
be  fair  and  full,  is  sufficient  to  satisfy  the  bond,*^  though  such  set- 
tlement may  be  attacked  by  the  sureties.'*^ 


§  266.  Estoppel  by  Recitals  in  the  Bond. — Sureties  upon  a 
guardian's  bond  are  bound  by  the  recitals  in  the  instrument,  and 
are  estopped  to  deny  that  their  principal  had  in  fact  been  ap- 
pointed guardian  of  the  ward.^*  Because  by  executing  the  bond 
the  sureties  obtain  for  their  principal  the  possession  and  control 
of  the  ward's  property,  and  cannot  therefore  be  permitted  to  es- 
cape liability  to  account  for  him  if  necessary,  by  denying  the  re- 
citals in  the  bond.^*  Although  the  appointment  is  irregular,  be- 
ing made  in  the  wrong  county,   the  principal  and  sureties  are 

son,  72  Minn.  426,  75  N.  W.  607.  Ky.  Law  Rep.  785,  32  S   W.  609;  State 

>ew    York.— Martin    v.    Hann,    32  v    Hull,  53  Miss.  626. 

App.  Div.  602,  53  N.  Y.  Supp.  186.  46.     Davenport    v     Olmstead,     43 

Wisconsin. — Shepard    v.    Pebbles,  Conn.  67. 

38  Wis.  373.  47.  State  v.  Hostes,  61  Mo.  544. 

Settlement    of    account   and    dis-  48.  Arkansas. — Norton    v.    Miller, 

charge  of  guardian  not  conclusive.  25  Ark.  108. 

See  Howe  v.  White,  162  Ind.  74,  69  Georgia. — Hines  v.  Mullins,  25  Ga. 

N.  E.  684.  696. 

Annual  settlement  not  conclusive  Indiana. — Bray  v.  State,  78  Ind.  68. 

to    extent    of    judgment.      Lincoln  Maine. — Williamson  v.   Woodman, 

Trust  Co.  V.  Wolff.  91  Mo.  App.  133.  73  Me.  163. 

Settlement    with     successor    not  Maryland. — Fridge  v.  State,  3  Gill, 

conclusive.     State  v.  Berger,  92  Mo.  <^  J.  103. 

App.  631.  Mississippi. — Hauenstein  v.  Gilles- 

44.  Botkin     v.     Kleinschmidt,     21  pie,  73  Miss.  742,  19  So.  673. 

Mont.    1,    52    Pac.    563;    Deegan    v.  ?fortli  Carolina. — Iredel  v.  Barbee, 

Deegan,   22   Nev.   185,   37   Pac.   360;  9  Ired.  L.  230. 

Braiden  v.  Mereer,  44  Ohio  St.  339;  Ohio.— Shroyer    v.    Richmond,    16 

Commonwealth  v.  Julius,  173  Pa.  St.  Ohio  St.  455. 

322,   34   Atl.   21;    Commonwealth   v.  Estoppel  to  deny  recitals  in  instru- 

Rhoads,  37  Pa.  St.  60.  ment,  see  §  59  herein. 

See  in  this  connection  §  65  herein.  49.  Fridge  v.    State,    3    Gill.    &   J. 

45.  Weaver  v.  Thornton,  63  Ga.  (Md.)  103;  Shroyer  v.  Richmond,  16 
655;   Commonwealth  v.  Bracken.  17  Ohio  St.  455. 


285  Bo^Ds  Under  Judicial  Sanction.        §§  267,  269. 

estopped  by  the  recitals  in' the  bond  to  raise  the  objections  that 
the  bond  is  illegal.^*^ 

§  267.  Joint  Guardians. — In  case  two  or  more  guardians  are 
jointly  appointed  for  the  same  ward,  and  execute  a  joint  bond  for 
the  faithful  performance  of  their  trust,  each  of  them  is  security 
upon  the  bond  for  the  other,  and  both  they  and  their  sureties  upon 
the  bond  are  responsible  for  devastavit  committed  by  either.^"^  And 
■one  of  the  joint  guardians  may  bring  suit  against  the  sureties  on 
the  joint  bond  for  a  default  of  his  co-guardian  and  recover  the  full 
amount  of  the  damages  caused  by  such  maladministration,  from 
the  sureties  ;^^  and  the  sureties  have  their  remedy  against  such 
plaintiff  or  principal,  in  his  individual  capacity,  for  indemnity." 

§  268.  Joint  Bond  Instead  of  Several. — The  bond  given  by 
the  guardian  will  be  enforced  so  far  as  it  is  consistent  with  the 
policy  of  the  law,  though  it  does  not  conform  to  it.  Thus,  a  guar- 
dian's bond  securing  the  estates  of  two  or  more  minors  in  joint 
form  and  particularizing  the  duties  to  be  performed  by  the  guar- 
dian, is  valid,  though  not  in  conformity  with  the  statute.^^  So 
where  the  guardian  of  several  minors  gives  but  one  bond,  the 
sureties  cannot  escape  liability  in  an  action  on  the  bond  on  the 
ground  that  it  is  not  such  a  bond  as  the  law  requires,  in  that  it  is 
joint  instead  of  several  as  to  the  obligees.^^ 

§  269.  Extent  of  Surety's  Liability. — Of  course  the  sureties 
may  be  bound  to  the  extent  of  the  penalty.  But  the  recovery  on 
the  bond  may  so  far  exceed  the  amount  of  the  penalty  as  is  neces- 
sary to  cover  interest  upon  the  penalty  from  the  date  of  the 
breach.^^     Because  when  the  surety  neglects  to  discharge  the  lia- 

50.  Norton  v.  Miller,  25  Ark.  108.  54.  Ordinary  v.  Heishon,  42  N.  J. 

61.  Freeman   v.   Brewster,   93   Ga.  L.  15. 

€48,  21  S.  E.  165.  55.  Pursley  v.  Hayes,  22  Iowa  11; 

52.  Boyle  v.  St.  John,  28  Hun  (N.  Deegan  v.  Deegan,  22  Nev.  185,  37 
Y.)  454;  Sperb  v.  McCtoun,  110  N.  Y.  Pac.  360. 

605,  18  N.  E.  441.  56.  James  v.  State,  65  Ark.  415,  4 

53.  Boyle  v.  St.  John,  28  Hun  (N.    S.  W.  937. 

Y.)  454;  Sperb  v.  McCoun,  110  N.  Y.        See    Swisher    v.    MoWhinney,    64 
€05,  18  N.  E.  441.  Ohio  St.  343,  60  N.  E.  565,  as  to  in- 

terest. 


§§  270,  271  Suretyship  a^'d  Guaranty.  28S 

bility  against  him,  it  is  but  reasonable  that  he  should  compensate 
the  obligee  for  delay  by  paying  legal  interest  from  such  date." 

The  surety  on  a  guardian's  bonds  to  several  wards  will  not  be 
liable  in  the  aggregate  to  an  amount  in  excess  of  the  penalty  fixed 
in  the  bond  and  interest  from  the  demand,  whether  the  amount  is 
recovered  jointly  or  severally.^^ 

§  270.  Revival  of  Liability  by  Surety. — At  common  law  a 
verbal  acknowledgment  is  sufiicient  to  revive  a  liability  barred  by 
the  statute  of  limitations."^  So  where  the  statute  does  not  deny  the 
right  to  revive  by  a  verbal  promise,  a  surety  on  a  guardian's  bond 
can  revive  his  liability  by  a  verbal  promise,  that  he  will  pay  what- 
ever fund  is  due  from  the  guardian.  The  duty  rests  upon  a  surety 
to  see  that  his  principal  performs  the  contract,  and  the  guaranty 
subsists  as  a  moral  obligation  after  the  statute  of  limitations  has 
run  against  the  right  to  enforce  it,  which  obligation  will  support 
a  new  promise  by  the  surety  to  answer  for  the  principal's  default. ^'^^ 

§  271.  Receiver's  Bond — Liability  of  Sureties. — There  must 
be  an  accounting,  settling  the  receiver's  account,  before  an  action 
upon  his  bond  can  be  instituted.^^  After  the  account  is  adjudged 
and  approved  by  the  court,  and  the  receiver  is  ordered  to  pay  the 
fund  in  his  hands  into  court,  or  to  the  person  entitled  thereto,  a 
failure  to  comply  with  such  order  renders  himself  and  his  sure- 
ties liable."^ 

If,  however,  the  receiver  dies  and  it  thus  becomes  impossible  to 
pursue  the  ordinary  course  against  him,  then  the  remedy  is  against 
the  sureties  on  the  bond.^^ 

And  a  failure  to  give  a  surety  the  notice  as  to  the  hearing  for  an 
accounting  is  held  to  preclude  an  action  against  him  on  the  bond.^* 

.57.  Brainard  v.  Jones,  18  N.  Y.  35;  N.  C.  323;   Atkinson  v.  Smith,  89  N. 

Wyman  v.  Robinson,  73  Me.  384.  C.  72. 

58.  United  States  Fidelity  &  Guar-       62.  Bank  v.  Creditors,  86  N.  C.  323; 

anty  Co.  v.  Parker  (Wyo.  1912),  121  Ludgater  v.  Cannell,  3   Man.   &  Gr. 

Pac.  531.  174. 

.59.  Perkins   v.   Clieney,   114   Mich.        63.  French  v.  Dauchy,  57  Hun  100, 

567,  72  N.  W.  595.  10  N.  Y.  Supp.  468;  Weems  v.  Lath- 

60.  Perkins  v.  Cheney,  114  Mich,  rop,  42  Tex.  207;  Ludgater  v.  Can- 
567,  72  N.  W.  595.  nell,  3  Man.  &  Gr.  175. 

61.  State  V.  Gibson,  21  Ark.  146;  64.  Stratton  v.  City  Trust,  Safe  De- 
French  V.  Dauchy,  57  Hun  100,  10  N.  posit  &  Surety  Co.,  86  App.  Div.  (N. 
Y.  Supp.  468;   Bank  v.  Creditors,  86  Y.)  551,  83  N.  Y.  Supp.  780. 


287  Bonds  Under  Judicial  Sanction.        §§  272,  273 

§  272.     Right  of  Action  Against  Surety  on  .'.Receiver's  Bond. — 

The  liability  of  sureties  on  a  receiver's  bond  can  generally  be  en- 
forced only  by  action  on  the  bond  in  a  common  law  court,  where 
they  can  make  defense  on  trial  by  a  jury.^"*  So  where  the  creditors 
institute  proceedings  by  the  common  law  action  of  debt  to  re- 
cover their  claims  and  obtain  an  order  for  their  payment,  a  mere 
summary  order  to  show  cause  cannot  be  enforced  though  no  de- 
fense was  made,  as  the  suit  must  be  tried.^*^  The  sureties  cannot 
be  summarily  proceeded  against  by  an  order  of  court  to  show  cause, 
unless  they  have  a  part  of  the  trust  fund  in  their  hands,  and  then 
only  to  the  extent  of  such  funds. "'^  Where  judgment  has  been  re- 
covered against  a  receiver  he  is  not  a  necessary  party  to  an  action 
against  his  sureties  on  the  bond.*^  The  annullment  of  the  appoint- 
ment of  a  receiver  who  has  acted  does  not  release  his  sureties  from 
liability.^^  But  neither  he  nor  his  sureties  are  liable  on  his  bond 
for  property  not  coming  under  its  provisions.™ 

§  273.  When  Surety  is  Concluded  by  Decree  of  Court. — After 
due  proceedings  and  full  hearing  by  the  court,  a  decree  made 
against  the  receiver  is  competent  evidence  both  of  a  breach  of  the 
bond  and  of  the  amount,  for  which  the  sureties  are  liable.^^  If 
the  receiver  is  entitled  to  compensation,  and  the  amount  is  after- 
wards ascertained,  his  sureties  may  petition  the  court  to  have 
the  amount  applied  to  their  indemnity,^"  but  such  amount  cannot 
be  considered  until  determined.^^  To  be  concluded  by  an  account- 
ing in  chancery  the  surety  must  have  due  notice  of  such  litiga- 
tion.'^*    If  the  receiver's  bond  is  for  the  future  the  surety  cannot 

65.  Thurman  v.  Morgan,  79  Va.  71.  Commonweaith  v.  Gould,  118 
367.  Mass.  300. 

66.  Nutton  V.  Isaacs,  30  Gratt.  See,  also,  Ward  v.  State,  111  :Md. 
(Va.)    740;   Black  v.  Gentery,  119  N.  528,  75  Atl.  116. 

C.  502,  26  S.  E.  43.  An   order  directing  the  payment 

67.  Atkinson  v.  Smith,  89  N.  C.  72;  of  money  by  the  receiver  cannot  be 
Bank  v.  Creditors,  86  N.  C.  323;  Lied-  collaterally  attacked.     Martin  &  Co. 
enback      v.      Denklespiel,      11      Lea  v.  Kirby  (Nev.  1911),  117  Pac.  2. 
(Tenn.)  297.  72.  Brandon  v.  Brandon,  3  DeG.  & 

68.  Black  v.  Gentery,  119  N.  C.  502,  j.  524. 

26  S.  E.  43.  73.  Commonwealth    v.    Gould,    118 

69.  Thompson  v.  Denner,  16  App.    Mass.  300. 

Div.   (N.  Y.)  160,  44  N.  Y.  Supp.  723.        74.  Ball  v.  Chancellor,  47  N.  J.  L. 

70.  Ayers  v.  Hite,  97  Va.  466,  34  S.    125. 
E.  44. 


§§  274,  275  Suretyship  and  Guaranty.  288 

be  made  liable  for  the  past  acts  for  which  he  has  not  covenanted.^^ 
Sureties  are  not  liable  for  any  defaults  or  misconduct  of  the  re- 
ceiver prior  to  the  execution  of  the  bond  where  the  undertaking 
is  that  the  receiver  shall  "  henceforth  "  faithfully  discharge  his 
duties.'^ 


§  274.     Funds   Coming   Into   the    Hands   of   the    Receiver. — 

Where  funds  have  been  paid  to  a  receiver  within  the  scope  of  his 
duties,  his  sureties  are  liable  for  the  misappropriation  of  such 
funds.  Thus,  the  receiver's  omission  to  pay  to  himself  as  receiver 
money  which  he  had  borrowed  of  the  company  for  which  he  is  re- 
ceiver before  his  appointment,  is  a  breach  of  his  bond,  for  which 
his  sureties  are  liable.^^  So  where  a  receiver  collects  notes  a  failure 
to  accomit  makes  his  sureties  liable  for  the  amount  collected.^* 
Whenever  the  money  received  cannot  be  recovered  back,  his  sure^ 
ties  are  liable  for  his  misconduct. ^^ 

§  275.  Giving  a  New^  Bond. — By  giving  a  new  bond  it  does 
not  necessarily  discharge  the  sureties  on  the  prior  bond.  So  an  or- 
der of  court  made  at  the  instance  of  one  of  the  parties  to  the  ac- 
tion for  which  a  receiver  is  appointed,  requiring  a  new  bond,  in 
the  same  sum  and  condition  of  his  existing  bond,  will  not  operate 
to  discharge  the  sureties  on  the  old  bond.  It  is  an  additional  or 
cumulative  bond,  and  is  not  substituted  for  the  first.^" 

§  276.  Extent  of  Surety's  Liability. — The  extent  of  the  lia- 
bility of  a  surety  of  a  receiver  can  only  be  ascertained  by  the  terms 

75.  Thompson  v.  MacGregor,  81  N.  for  losses  sustained  through  errors 
Y.  592.  of  judgment  on  the  receiver's  part 

76.  Rochester  v.  Randall,  105  Mass.  in  managing  the  property  of  the  es- 
295;  Bissell  v.  Saxton,  66  N.  Y.  60;  tate,  both  are  chargeable  for  that 
Vivian  v.  Otis,  24  Wis.  518.  part  of  the  estate  which  came  into 

77.  Commonwealth  v.  Gould,  118  the  hands  of  the  receiver  and  the 
Mass.  300.  proceeds  of  such  part  thereof  as  he 

78.  Weems  v.  Lathrop,  42  Tex.  sold.  Matter  of  Federal  Union 
207.  Surety  Co.,  73  Misc.  R.    (N.  Y.)   28, 

78.  Wilde     v.     Baker,     14     Allen  132  N.  Y.  Supp.  196. 

(Mass.)  349.  80.  Stewart    v.    Johnston,    87    Ga. 

Though   neither  the   receiver   nor  97^  13  g,  g   258. 
the   surety   on   his   bond   are   liable 


289  Bonds  Under  Judicial  Sanction.  §  277 

of  the  bond.*^  Thus,  where  the  engagement  of  a  surety  is  for  the 
futurq,  he  cannot  be  held  liable  for  the  past  as  to  which  he  has  not 
<jovenanted.^^  As  between  the  principal  and  the  creditors  of  the 
fund  which  it  is  the  receiver's  duty  to  pay  according  to  the  order 
of  the  court,  if  he  has  been  heard,  he  is  bound  by  the  adjudication. 
As  between  the  surety  and  such  creditors,  it  is  not  the  receiver's 
duty  to  pay  according  to  an  order  made  without  the  surety's  knowl- 
edge as  to  which  he  has  not  been  heard  and  which  is  not  against 
him  a  binding  adjudication.  Hence,  a  judgment  against  the  prin- 
cipal cannot  be  binding  upon  the  surety  only  as  evidence  unless 
by  the  terms  of  the  bond  the  surety  contracts  to  be  bound  by  the 
adjudication  against  his  principal.^^ 

Whether  a  surety  is  liable  for  interest  on  the  penalty  after 
breach  is  in  the  discretion  of  the  court  upon  the  consideration  of  all 
the  facts  and  circumstances.^*  The  surety  is  liable  for  the  costs  for 
which  the  receiver  is  liable.*^ 


§  277.  Liability  of  Surety  on  Assignee's  Bond. — The  liability 
of  a  surety  on  an  assignee's  bond  will  depend  upon  the  terms  of  the 
bond,  and  will  not  be  extended  by  construction.*^  And  when  the 
bond  is  a  good  common-law  bond,  and  not  contrary  to  statute  or 
public  policy,  it  will  be  valid  against  the  assignee  and  his  sure- 
ties,*' though  not  wholly  complying  with  the  statute.  The  sureties 
are  liable  for  the  proper  administration  of  the  funds  which  come 


81.  Ross    V.    Williams,    11    Heisk.  ner,  82  Kan.  691,  109  Pac.  394. 
(Tenn.)  410.  84.  State  v.   Blakemore,   7   Heisk. 

82.  Bissell  v.  Saxton,  66  N.  Y.  60;  (Tenn.)  657;  In  re  Herrlck's  Minors, 
"United  States  v.  Giles,  9  Cranch  (U.  3  Ir.  Ch.  (N.  S.)  183. 

S.)    212,    3    L.    Ed.    708;    Farrar    v.  See,    also,    Dawson    v.    Raynes,    2 

United  States,  5  Pet.   (U.  S.)   373,  8  Russ.  466. 

L.  Ed.  159.  85.  Mannsell  v.  Egan,  8  Ir.  Eq.  372, 

83.  Thompson  v.  MacGregor,  81  N.  9  Ir.  Eq.  283. 

Y.  592.  86.  Moulding   v.    Wilhartz,    67    111. 

See,  also,  Scofield  v.  Churchill,  72  App.  659,  169  111.  422,  48  N.  E.  189; 

N.  Y.  565.  Ward  v.   Stahl,   81   N.   Y.   406;    Van 

Failure  to  comply  with  order  of  Slyke  v.  Bush,  123  N.  Y.  47,  25  N.  E. 

court   to   pay    over   money   held   a  196. 

breach   of  bond   rendering  sureties  87,  Andrews  v.  Ford,  106  Ala.  173, 

liable.    Northrup  Nat.  Bank  v.  Var-  17  So.  446. 
19 


§§  278, 280  Suretyship  and  Guaranty.  290 

into  the  hands  of  the  assignee  ;^^  their  liability  is  the  same  as  the 
assignee  in  the  scope  of  his  duties. 

§  278.     Estoppel  of  Surety. — The  sureties  on  the  bond  of  an 

ass.ignee  are  concluded  by  the  finding  of  the  court  as  to  the  amount 
to  be  accounted  for  by  the  receiver.'"^  The  final  decree  of  the  court 
upon  a  full  hearing  concludes  the  sureties  on  the  assig-nee's  bond, 
as  to  a  collateral  attack,^'  but  the  surety  may  appeal  from  the  order 
of  the  court,  but  such  order  cannot  be  attacked  collaterally.^^ 

§  279.  Giving  New  Bond. — If  the  court  upon  satisfactory 
grounds  requires  a  new  bond  to  be  given  by  the  assignee,  this  does 
not  release  the  sureties  on  the  old  bond.  Thus,  a  court  finding  the 
assignee  in  insolvency  proceedings  is  disposing  of  the  funds  of  the 
estate  without  the  order  of  the  court,  and  being  satisfied  that  the 
sureties  on  the  assignee's  bond  are  insolvent,  may  require  an  ad- 
ditional bond  to  be  given,  which  will  only  be  cumulative.®'^  And 
when  the  new  bond  requires  that  the  assignee  shall  obey  the  orders 
of  the  court  "  previously  and  subsequently  "  entered,  the  sureties 
on  the  new  bond  are  liable  upon  the  assignee's  failure  to  obey  an 
order  of  the  court  requiring  him  to  account  for  funds  of  the  estate 
which  he  had  paid  out  without  authority  before  the  new  bond  was 
executed,  though  this  proviso  is  not  a  condition  of  the  statutory 
bond.'" 

§  280.  Default  of  Assignee. — A  failure  to  comply  with  the  or- 
der of  the  court  makes  the  assignee  and  his  sureties  liable  upon  the 
bond.®^  A.  mere  failure  of  a  creditor  to  use  due  diligence  in  col- 
lecting a  claim  from  the  assignee  cannot  relieve  the  surety  y"^  even 
if  the  assignee  has  become  insolvent  during  the  delay  of  the  credi- 

88.  Van  Slyke  v.  Bush,  123  N.  Y.  92.  Moulding  v.  Wilhartz,  169  111. 
47,  25  N.  E.  196.  422,  48  N.  E.  189. 

89.  Patterson's  Appeal,  48  Pa.  St.  93.  Moulding  v.  Wilhartz,  169  111. 
342.  422,  48  N.  E.  189. 

90.  Moulding  v.  Wilhartz,  169  111.  94,  Moulding  v.  Wilhartz,  169  111. 
422,  48  N.  E.  189;  Little  v.  Common-  422,  48  N.  E.  189. 

wealth,  48  Pa.  St.  337.  95.  Oppenheimer    v.    Hamrick,    86 

91.  Steele's  Case,  34  N.  J.  Eq.  199;    Iowa  584,  53  N.  W.  312. 
Garner  v.  Tisinger,  46  Ohio  St.  56.  96.  Taylor  v.  State,  73  Md.  208. 


291  Bonds  Under  Judicial  Sanction.  §  281 

tor,  the  surety  is  not  released.^^  If  a  judgment  declares  an  assign- 
ment void  as  to  certain  creditors,  then  they  cannot  hold  the  sure- 
ties of  the  assignee  liable  for  such  funds  as  are  covered  by  tho 
judgment,  because  sureties  can  be  charged  only  when  the  case  is 
brought  within  the  terms  of  their  contract,  which  cannot  be  ex- 
tended by  construction  to  embrace  purposes  and  objects  not  con- 
templated by  the  parties.^^ 

§  281.  Discharge  of  Surety. — An  assignee  and  his  sureties  can 
be  discharged  judicially  only  upon  a  regular  proceeding  for  an 
accounting,  and  the  payment  of  the  fund  according  to  the  final  or- 
der of  the  court,^^  although  the  creditors  have  consented  to  a  com- 
position, and  the  accounting  may  be  wholly  formal.^  Under  the 
Ohio  statute  the  sureties  on  the  bond  of  an  assignee  who  has  failed 
to  pay  the  fund  over  as  ordered  are  not  joint  debtors.  So  a  com- 
promise to  release  one  surety  will  not  discharge  the  others.  They 
will  be  liable  for  their  proportionate  share  of  the  debt  against  the 
assignee.^ 

97.  People  v.   White,  28  Hun    (N.  13;  In  ro  Loventhal,  10  Daly  (N.  Y.) 
Y.)   289.  14. 

98.  People  v.  Chalmers,  60  N.  Y.  1.  In  re  Yeager,  10  Daly  (N.  Y.)  7; 
154,   distinguishing  People  v.  Vilas,  In  re  Dryer,  10  Daly  (N.  Y.)  8. 

36  N.  Y.  459.  2.  Walsh  v.  Miller,  51  Ohio  St.  462, 

99.  In  re  Merwin,  10  Daly  (N,  Y.)    38  N.  E.  381. 


§    282  SUEETYSHIP   AND   GuAEANTY.  292 


CHAPTER  XI. 

BONDS  OF  PRIVATE  OFFICERS  AND  AGENTS. 

Section  282.  Duration  of  Surety's  Liability. 

283.  Continuing  Liability  of  Surety. 

284.  Restriction  of  Surety's  Liability  by  Recitals  in  the  Bond. 

285.  As  to  the  Scope  of  the  Officer's  Employment. 

286.  Increase  of  Capital  Stock  of  Corporation. 

287.  Discharge  of  Surety  by  Fraud. 

287a.  Bond  and  Application  Construed  Together  —  Effect  of  State- 
ments in  Application. 

288.  Bond  Covering  Prior  and  Subsequent  Defaults. 

289.  Principal  His  Own  Successor. 

290.  Continuing  Principal  in  Office  After  Known  Defaults. 

291.  Delinquency  of  Obligee. 

292.  Failure  to  Discharge  Delinquents. 

293.  Failure  to  Notify  Surety  of  Default. 

294.  Covenant  not  to  Sue. 

295.  Accord  and  Satisfaction. 

296.  Notice  of  Surety's  Withdrawal. 

297.  Discharge  by  Acts  of  Obligee. 
297a.  Departure  from  Terms  of  Contract. 

298.  Action  on  the  Bond. 

299.  Sureties  Concluded  by  Recitals  in  a  Bond. 

300.  Liability  for  Loss  of  Money. 

Sec.  282,  Duration  of  Surety's  Liability. — A  surety's  liability 
on  a  private  official  bond  is  generally  limited  to  a  certain  time, 
after  which  he  is  not  liable  for  defaults  of  the  principal.  Thus, 
when  the  bond  is  an  annual  one,  the  obligors  are  only  bound  for  de- 
faults that  occur  during  the  year  for  which  the  bond  was  given. 
And  even  in  cases  where  the  officer  is  authorized  to  hold  over  his 
term  and  until  his  successor  is  elected  and  qualified,  the  liability 
on  the  official  bond  is  not  extended  beyond  the  duration  of  the  term. 
And  where  an  officer  is  chosen  for  a  term  of  limited  duration,  and 
a  bond  for  the  faithful  performance  of  his  duties  is  given,  the  pre- 
sumption is  that  the  sureties  only  contracted  for  faithfulness  of  the 
officer  during  that  time;  and  the  obligation  of  the  sureties  is  not 
extended  by  the  mere  fact  that  such  officer  is  re-elected,  or  for  any 
reason  holds  over  the  term.^ 

1.  Connecticut.  —  Walch  v.  Sey-  Illinois. — People  v.  Toomey,  122 
mour.  28  Conn.  387.  111.  308,  13  N.  E.  521. 


293  Bonds  of  Private  Officers  and  Agents.    §§  283,  284 

And  where  the  appointment  of  an  agent  of  a  corporation  is  tem- 
porary, and  a  right  to  revoke  the  appointment  being  reserved,  and 
no  time  specified  for  its  duration,  the  liability  of  the  surety  contin- 
ues only  until  the  appointment  is  revoked.^  Where  two  corpora- 
tions become  consolidated  by  law,  the  surety  on  the  bond  before  con- 
solidation is  liable  for  a  breach  committed  after  the  amalgamation 
of  the  two  corporations.' 

It  is  a  general  rule,  however,  that  a  surety  is  not  liable  for  past 
defaults  of  his  principal.* 

§  283.  Continuing  Liability  of  Surety. — Many  bonds  are 
drawn  binding  the  surety  during  the  time  of  the  principal's  con- 
tinuance in  office  and  until  his  successor  is  elected  and  qualified. 
But  such  bond  does  not  bind  the  surety  beyond  the  period  of  his 
first  election  and  such  further  time  as  is  reasonably  sufficient  for 
the  election  and  qualification  of  the  principal's  successor,  the  office 
being  by  statute  an  annual  one.  The  principal's  re-election  from 
time  to  time  does  not  charge  the  sureties ;  and  the  statutory  pro- 
vision that  the  principal  when  elected  shall  hold  his  office  until 
another  is  chosen  and  qualified  in  his  stead,  does  not  extend  the 
surety's  liability  to  subseq^uent  elections  of  the  same  principal.^ 

§  284.  Restriction  of  Surety's  Liability  by  Recitals  in  the 
Bond. — The  liability  of  the  sureties  may  be  restricted  by  recitals 

Indiana. — Rancy  v.  The  Governor,  2  Mete.  (Mass.)  522;  Exeter  Bank  v. 

4  Blackf.  (Ind.)  2.  Rogers,  7  N.  H.  21. 

Iowa. — Wappello    v.    Bigham,    10  Liability  limited  to  a  fixed  time, 

Iowa  39.  see  §  70  herein. 

Kansas.  —  McMulIen    v.    Winfield  2.  Mobile,  etc.,  R.  R.  Co.  v.  Brewer, 

Building  &  Loan  Ass'n,  64  Kan.  298,  76  Ala.  135. 

67    Pac.    892;     Life    Association    v.  3.  Eastern,  etc.,  R.  R.  Co.  v.  Coch- 

Lemke,  40  Kan.  661,  20  Pac.  512.  rane,  23  L.  J.  (N.  S.)  61. 

Missouri. — North  St.  Louis  Build-  4.  Goldberg    v.    Sisseton    Loan    & 

ing  &  Loan  Ass'n  v.  Obert,  169  Mo.  Title  Co.,  24  S.  D.  49,  123  N.  W.  266. 

507,  69  S.  W.  1044.  See,  also,  §  69  herein,  where  this 

Pennsylvania.    —    Manufacturers,  question  is  considered, 
etc.,  Co.  V.  Odd  Fellows  Ass'n,  48  Pa.  5.  Lexington,  etc.,  R.  R.  Co.  v.  El- 
St.  446.  well,  8  Allen    (Mass.)   371;   Middle- 
Tennessee. — Cincinnati,  etc.,  R.  H.  sex  Mfg.  Co.  v.  Lawrence,  1  Allen 
Co.  V.  Morrell,  11  Heisk.  715.  (Mass.)  339. 

Compare  Amherst  Bank  v.   Root,  See  §§  70,  71,  herein,  where  this 

question  is  considered. 


§    285  SUKETYSIIIP   AND    GUARANTY.  294: 

in  the  terra  of  office  in  the  bond  itself,^  So  where  it  appears  by  the 
records  of  a  corporation  that  the  office  by  the  regulation  of  the  cor- 
poration is  an  annual  one,  the  bond  should  be  restricted,  which  will 
control  the  surety's  liability.''  )So  when  the  recitals  in  a  bond  are 
that  one  has  been  appointed  to  an  office  for  a  limited  time,  it  will 
restrict  the  liability  of  the  sureties.^  Where  the  bond  is  condi- 
tioned against  any  loss  which  the  employer  may  sustain  "  by  any 
act  of  fraud  or  dishonesty,"  the  liability  of  the  surety  is  limited  to 
losses  of  such  a  character.^  But  where  the  bond  of  an  em- 
ployee Avas  conditioned  against  any  loss  of  the  employer  result- 
ing from  "  the  dishonesty  or  any  act  of  fraud  amounting  to  lar- 
ceny or  embezzlement "  on  the  part  of  the  employee  the  surety 
company  was  held  liable  for  losses  through  dishonest  acts  of  such 
employee  though  they  did  not  amount  to  larceny  or  embezzlement.^'' 

§  285.     As   to   the    Scope   of   the    Officer's   Employment. — A 

surety  cannot  be  held  bound  for  a  longer  time  than  that  limited  by 
his  undertaking,  and  such  undertaking  as  against  the  surety  is  to 
be  strictly  construed. ^^  The  surety  does  not  undertake  to  be  liable 
for  anything  beyond  the  letter  of  his  contract,  and  is  only  liable 
within  its  terms. ^^  But,  whether  the  principal  is  acting  within  the 
scope  of  his  employment  or  not,  his  sureties  are  liable,  provided  the 
default  was  a  breach  of  the  condition  of  his  bond.  Thus,  the  sure- 
ties on  a  bond  of  a  bank  messenger  are  liable  for  moneys  stolen 
from  the  bank  by  the  messenger,  whether  he  was  acting  within  the 
scope  of  his  employment  or  not,  as  the  theft  was  a  breach  of  the 
condition  of  his  bond,  conditioned  to  conduct  himself  honestly  and 
faithfully.^^    So,  under  like  condition  of  bond  the  sureties  are  lia- 

6.  Arlington  v.  Merricke,  2  Sand.    Surety  Co.  v.  Lee,  204  111.  69,  68  N. 
411;   Liverpool  Water  Works  v.  At-    E.  485,  affirming  107  111.  App.  263. 
kinson,  6  East  507,  11.  Mulikin     v.     State,     7    Blackf. 

As  to  effect  of  recitals  in  bond,  see  (Ind.)  77. 

§§  59  et  seq.  12.  Detroit  Sav.  Bank  v.  Ziegler,  49 

7.  Dedham  Bank  v.  Chickering,  3  Mich.   157,   13  N.  W.   496;    Dr.  Koch 
Pick.  (Mass.)   335.  Vegetable  Tea  Co.  v.  Gates,  43  Wash. 

8.  Lexington,  etc.,  R.  R.  Co.  v.  El-  478,  86  Pac.  624. 

■well,  8  Allen  (Mass.)  371.  As  to  contract  being  strictly  con- 

9.  United  States  Fidelity  &  Guar-  strued,  see  §§  66  et  seq.,  herein, 
anty  Co.  v.  Merkly,  23  Ky.  Law  Rep.  13.  German  Am.  Bank  v.  Uruth,  87 
1570,  65  S.  W.  614.  Pa.  St.  419. 

10.  City    Trust,    Safe    Deposit    & 


295'  Bonds  of  Private  Opficees  and  Agents.  §  285 

ble  if  a  cashier  transcends  the  known  powers  of  his  office  by  chang- 
ing the  securities  of  the  bank  without  its  knowledge  and  losses  ac- 
crue by  the  abuse  of  his  trust.^*  So,  also,  the  appropriation  by  the 
bookkeeper  of  the  bank's  money,  and  making  fraudulent  entries  to 
avoid  detection  is  a  breach  of  the  bond  conditioned  for  his  honesty, 
and  the  sureties  are  liable/^ 

And  where  the  bond  was  to  secure  the  faithful  performance  of 
the  duties  of  an  official  in  respect  to  funds  received  by  him  for  in- 
vestment there  was  held  to  be  a  breach  of  the  bond  where  he  loaned 
a  part  of  such  funds  to  himself  upon  securities  which  were  insuf- 
ficient.-^^ But  if  the  sureties  sign  a  bond  for  a  specific  business, 
they  are  not  liable  for  the  iprincipal's  defaults  in  another  business 
entirely  foreign  to  their  undertaking," 

tSo  where  a  person  held  two  positions,  one  as  treasurer  of  a  com- 
pany and  another  as  cashier  of  a  bank,  a  bond  given  to  secure  the 
company  against  any  embezzlement  of  its  funds  by  its  treasurer 
was  held  not  to  cover  a  misappropriation  of  the  funds  of  the  bank 
by  its  cashier.^* 

While  the  liability  of  a  surety  is  not  to  be  extended  by  implica- 
tion beyond  the  terms  of  the  contract  by  which  his  responsibility  is 
to  be  measured,  yet  a  bond  constituting  a  contract  must  have  such 
construction  given  to  it  as  to  carry  out  the  intention  of  the  parties 
thereto,  and  in  this  respect  there  is  no  difEerence  between  such  con- 
tract and  any  other/^    And  it  is  deci4ed  that  the  provisions  of  the 

14.  Barrington  v.  Bank,  14  Serg.  19,  United  States. — Magee  v.  Ins. 
&  R.  (Pa.)  405.  Co.,  92  U.  S.  93,  23  L.  Ed.  699;  Minor 

15.  Rochester    City    Bank    v.    El-  v.  Bank,  1  Pet.  46,  7  L.  Ed.  47. 
wood,  21  N.  Y.  88;  Minor  v.  Bank,  1  Maryland. — Engles  v.  Ins.  Co.,  46 
Pet.   (U.  S.)  46,  7  L.  Ed.  47;  United  Md.   322;    Strawbridge    v.    Railroad 
States  V.  Boyd,  15  Pet.    (U.  S.)    187,  Co,.  14  Md.  360. 

10  L.  Ed.  706.  Massachusetts.  —  Rollstone    Nat. 

16.  Catholic   University  of  America    Bank  v.  Carleton,  136  Mass.  226. 

V.  Morse,  32  App.  D.  C.  195,  holding,  Michigan. — Detroit    Sav.    Bank    v. 

however,  that  the  sureties  would  be  Ziegler,  49  Mich.  157,  13  N.  W.  496. 

released   where   the   obligee   subse-  New  York. — Rochester  City  Bank 

quently  ratified  his  acts  by  accepting  v.  Elwood,  21  N.  Y.  88. 

such  securities  and  others.  PennsylTania. — German   Am.  Bank 

17.  Blair  v.  Ins.  Co.,  10  Mo.  559.  v.  Auth,  87  Pa.  St.  419;  Barrington  v. 

18.  Northwestern  Townsite  Co.  v.  Bank,  14  Serg.  &  R.  405. 

Fidelity  &  Deposit  Co.  of  Maryland,  England. — Melville  v.  Dodge,  6  M. 
180  Fed.  702,  104  C.  C.  A.  554.  G.  &  S.  450. 


§  286  SUEETYSHIP  AND  GUARANTY.  296 

statutes,  in  a  statutory  bond,  will  not  be  read  into  the  bond,  there- 
by adding  new  terms  to  it.^" 


§  286.     Increase  of  Capital  Stock  of  Corporation. — It  is  the 

established  rule  of  law  that  a  party  to  a  contract  is  not  bound  be- 
yond the  extent  of  his  engagement,  which  appears  from  the  terms 
of  the  contract  and  the  nature  of  the  transaction  to  have  been  in 
his  contemplation  at  the  time  of  entering  into  it,  and  that  his  lia- 
bility cannot  without  his  consent  be  extended  or  enlarged  either  by 
the  obligee  or  by  the  operation  of  law.^^ 

So  the  sureties  on  a  cashier's  bond,  in  which  they  undertake  to 
save  the  bank  harmless  from  every  loss  that  may  arise  from  the 
cashier's  mistakes  as  well  as  from  losses  arising  from  his  fraud, 
inattention  or  negligence  in  the  performance  of  his  duties,  are  ex- 
onerated by  the  increase  of  the  capital  stock  of  the  bank,  after  the 
making  of  the  bond,  for  liability  for  acts  of  the  cashier  after  the 
additional  capital  had  been  paid  in,  because  it  increases  the  risk 
for  greater  losses  that  may  occur  through  malfeasance  of  the 
cashier.^^  But  this  doctrine  is  not  accepted  by  all  the  courts.  Thus, 
it  is  held  that  the  sureties  are  not  released  by  the  increase  of  capi- 
tal stock,  as  it  does  not  increase  the  liability  of  the  sureties  or  the 
duties  of  the  principal.^^  And  so  the  increase  of  the  capital  stock 
by  virtue  of  a  statute  passed  after  the  making  of  the  cashier's  bond, 
will  not  discharge  the  sureties  on  such  bond.^*  The  reason  for  this 
last  rule  is  that  there  is  no  change  in  the  office ;  that  the  duties  of 
the  office  remain  the  same,  and  that  the  increase  of  business  is 
fairly  contemplated  by  the  bond  looking  at  the  character  of  the 
position  which  the  principal  holds.^^    Thus,  the  sureties  on  a  bond 

20.  Howard  Co.  v.  Hill,  88  Md.  111.    (Del.)  90.    In  this  case  the  bond  was 
Compare  State  v.  Rubber  Mfg.  Co.,    not  conditioned  against  losses  occa- 

150  Mo.  181.  sioned  by  the  cashier's  mistake. 

21.  Miller  v.  Stewart,  9  Wheat.  (U.  See  Lionberger  v.  Kieger,  88  Mo. 
S.)  680,  702,  6  L.  Ed.  189;  North-  160;  Morris  Canal  Co.  v.  Van  Vorst, 
western  Railway  Co.  v.  Whinary,  10  21  N.  J.  L.  100. 

Exch.  77;   Bamford  v.  lies,  3  Exch.  24.  Morris  Canal  v.  Van  Vorst,  21 

280;    Banor   v.   Macdonald,   3   H.   L.  N.  J.  L.  100;  Lionberger  v.  Krieger, 

Cas.  226.  88  Mo.  160. 

22.  Grocers  Bank  v.  Kingman,  16  25.  Strawbridge  v.  Railroad  Co., 
Gray  (Mass.)   473.  14  Md.  360;   Rollstone  Nat.  Dank  v. 

23.  Bank    v.    Wollaston,    3    Harr.  Carleton,  136  Mass.  226. 


297  Bonds  of  Private  Ot-ficeks  and  Agents.  §  2.ST 

of  the  principal  whose  obligation  is  to  perform  all  the  duties, 
of  a  ticket  agent  for  a  railroad,  embracing  those  which  are  or 
may  be  imposed  upon  him  under  the  present  appointment  or  any 
future  appointment,  are  not  released  because,  after  his  ap- 
pointment, the  capital  stock  of  the  corporation  is  increased.^^ 

§  287.  Discharge  of  Surety  by  Fr.aud. — Persons  asked  to  be- 
come sureties  on  a  bond  for  the  good  conduct  and  fidelity  of  an 
officer  have  the  right  to  be  treated  with  perfect  good  faith.  If  the 
corporation  knows  of  a  secret  fact  materially  increasing  the  risk 
of  the  surety,  the  surety  is  entitled  to  have  the  fact  disclosed  to 
him,  an  opportunity  being  present  to  do  so.  If  the  surety  is  de- 
ceived by  misrepresentation  and  concealment  by  the  corporation, 
or  obligee,  he  will  be  released.^^  If  the  proposed  surety  in  a  bond 
for  the  conduct  of  an  employee  makes  inquiry  of  the  proposed 
obligee  as  to  the  previous  conduct  of  the  employee,  such  obligee  is 
bound  to  make  full  disclosure  of  all  material  facts  within  his 
knowledge  bearing  on  the  risk,  and  if  he  fails  to  do  so  or  knowingly 
makes,  in  response  to  the  inquiry,  false  representations  as  to  such 
facts,  or  does  so  ignorantly,  but  under  such  circumstances  as  would 
naturally  lead  the  inquirer  to  believe  the  representations  to  be 
based  on  an  investigation,  and  the  proposed  surety  is  thereby  in- 
duced to  sign  the  bond,  he  may  avoid  liability  thereon  on  the 
ground  of  fraud.^^  To  accept  a  surety  known  to  be  acting  upon  a 
belief  that  there  are  no  unusual  circumstances  by  which  his  risk 
will  be  materially  increased  while  the  party  thus  accepting  knows 

26.  Eastern   R.   R.   Co.   v.  Loring,  or  negligence  in  the  performance  of 

136   Mass.    381.      In    comparing   this  his   duties.      "  That   decision   is    not 

case  with  Grocers  Bank  v.  Kingman,  authority  for  the  present  case."  See, 

16  Gray  (Mass.)   473,  the  court  says  also,  Strawbridge  v.  Railroad  Co.,  14 

there  is  no   close  analogy  between  Md.  360. 

the  duties  and  responsibilities  of  a  27.  Maltby's  Case,  1  Dow.  P.  Cas. 

cashier  of  a  bank   and  those   of  a  294;  Graves  v.  Bank,  10  Bush.  (Ky.) 

ticket  seller  of  a  railroad  company.  23. 

The  former  is  more  directly  affected  28.  Brillion  Lumber  Co.  v.  Bar- 
by  an  increase  of  the  capital  stock  nard,  131  Wis.  284,  111  N.  W.  483. 
of  the  corporation  than  the  latter.  Failure  to  give  truthful  reply  to 
Moreover,  in  that  case  the  sureties'  inquiry  in  a  material  matter  releases 
were  bound  for  losses  that  might  surety.  Frank  Feho  Brewing  Co.  v. 
arise  from  the  cashier's  mistakes,  as  Mullican,  23  Ky.  Law  Rep.  2100,  66 
well  as  from  his  fraud,  inattention  S.  W.  627. 


§  287a  Suretyship  and  Guaranty.  298 

that  there  are  such  circumstances,  will  release  the  surety,  if  the 
obligee  has  a  suitable  opportunity  to  make  such  disclosure. ^^  Thus, 
where  a  bank  fraudulently  conceals  that  a  teller  was  a  defaulter, 
and  thereby  procures  persons  to  go  on  his  bond,  such  sureties  are 
not  liable  for  subsequent  defaults.^''  But  if  the  sureties  are  mis- 
led by  the  principal,  and  the  obligee  knows  nothing  of  the  fraud 
perpetrated  upon  the  sureties,  they  will  not  be  released.^^ 

It  is  held  by  some  courts  that  a  mere  concealment  by  the  obligee 
will  not  release  the  surety."^  But,  in  any  case,  the  obligee  is  only 
bound  to  give  information  of  such  facts  as  are  absolutely  known. 
He  is  not  bound  to  disclose  mere  rumors.^^ 


§  287a.  Bond  and  Application  Construed  Together — Effect  of 
Statements  in  Application. — The  principle  controlling  in  fire  and 
life  insurance  that  where  statements  and  representations  have 
been  used  by  the  insured  as  the  basis  of  the  insurance,  and  by  the 
terms  of  the  policy  issued  and  accepted,  said  statements  are  made 
a  part  of  the  policy  itself,  any  material  false  and  fraudulent  state- 
ment made  by  the  insured  will  avoid  the  policy,  has  been  applied 
in  the  case  of  bonds  so  issued  by  a  fidelity  company  upon  written 
applications  guarantying  the  faithful  performance  of  duties  by  a 
bank  or  other  official.  In  such  a  case  the  bond  and  the  statements 
so  made  form  the  contract  and  must  be  construed  together  to  de- 
termine the  rights  and  liabilities  of  the  parties  thereto.  ISTor  in 
such  a  case  can  a  party  claim  the  benefit  of  the  bond  and  at  the 
same  time  repudiate  the  statements  so  made  on  the  ground  of 
want  of  authority  on  the  part  of  the  person  making  them.^* 

So  where  a  bond  was  issued  by  a  surety  company  and  accepted 

29.  Franklin    Bank   v.    Cooper,    36  32.  Atlantic,     etc.,     Tel.     Co.      v. 
Me.    179;     Dinsmore    v.    Tidhall,    34  Barnes,  64  N.  Y.  385;  Aetna  Life  Ins. 
Ohio  St.  411;  Aetna  Life  Ins.  Co.  v.  Co.  v.  Mabbett,  18  Wis.  668. 
Mabbett,  18  Wis.  668.  33.  State  v.  Atherton,  40  Mo.  209. 

30.  Wayne  v.  Bank,  52  Pa.  St.  343.  34.  Willoughby  v.  Fidelity  &   De- 

31.  Magee  v.  Insurance  Co.,  92  U.  posit  Co.,  16  Okla.  546,  85  Pac.  713, 
S.  93,  23  L.  Ed.  699;  Bostwick  v.  Van  7  L.  R.  A.  (N.  S.)  548,  affirmed  205 
Voorhis,  91  N.  Y.  353;  Western,  etc.,  U.  S.  537,  27  Sup.  Ct.  790,  51  L.  Ed. 
Ins.    Co.    V.    Clinton,    66    N.   Y.    326;  920. 

Casoni  v.  Jerome,  58  N.  Y.  315;  Mc-  As  to  surety  bond  and  application 
Williams  v.  Mason,  31  N.  Y.  294;  being  construed  together,  see  §  445 
Atlas  Bank  v.  Brownell,  9  R.  I.  168.    herein. 


299  Bonds  of  Private  Officers  and  Agents.  §  288 

bj  a  bank,  for  the  faithful  discharge  of  the  duties  of  its  presi- 
dent, upon  the  faith  of  certain  statements  and  representations  in 
writing,  made  by  the  assistant  cashier  of  the  bank,  relative  to  the 
conduct,  employment,  duties  and  accounts  of  the  presi- 
dent, and  such  statements  so  made  by  the  assistant  cashier  were 
by  the  terms  of  the  bond  made  a  part  thereof,  it  was  decided  that 
the  bond  and  the  statements  together  formed  the  contract,  and 
must  be  construed  together  and  upon  their  joint  construction,  or 
upon  their  construction  as  a  whole,  must  depend  the  rights  and 
liabilities  of  the  parties  thereto.^^ 


§  288.  Bond  Covering  Prior  and  Subsequent  Defaults. — If 
the  sureties  become  liable  for  prior  as  well  as  future  defaults  of 
the  principal,  they  will  not  be  liable  if  their  names  were  procured 
by  the  obligee  with  fraudulent  intent  who  knew  that  the  principal 
had  defaulted  in  the  past  of  which  the  sureties  were  ignorant,  with 
an  opportunity  to  communicate  such  defaults. ^^  Misrepresenta- 
tion or  concealment  of  any  material  part  of  the  transaction  will 
avoid  the  contract  of  suretyship." 

Still,  as  a  matter  of  law,  it  is  not  a  fraud  upon  the  sureties  that 
the  principal  was  behind  in  his  accounts  at  the  time  he  gave  his 
bond  of  indemnity,  and  no  notice  of  such  default  was  communi- 
cated to  the  sureties.^^  Because  intent  is  the  gist  of  the  fraud,  and 
this  must  be  made  to  appear  on  the  part  of  the  obligee."^  So  a 
surety  on  the  bond  of  a  cashier  of  a  bank  is  not  discharged  by 
the  mere  fact  that  the  cashier  was,  at  the  time  the  bond  was  made, 

35.  Willoughby  v.  Fidelity  &  De-  See  in  tiiis  connection  §§  69,  70,  71, 
posit  Co.  of  I\Iaryland,  16  Okla.  546,    herein. 

85  Pac.  713,  holding  also  that  in  an  37.  Franklin  Bank  v.   Stevens,  39 

action  on  the  bond  by  the  receiver  Me.  532. 

of  the  bank  he  could  not  be  heard  to  38,  Eoper  v.  Sangamon  Lodge,  91 

question  the  authority  of  the  assist-  111.    518;    Taft    v.    Gifford,    13    Met. 

ant  cashier  to  bind  the  bank  by  his  (Mass.)    187;    Watertown    Fire    Ins. 

statements  and  at  the  same  time  be  Co.  v.  Simmons,  131  Mass.  85;  Pitts- 

^liowed  to  recover  on  the  bond  on  burg,  etc.,  R.  R.  Co.  v.  Shaeffer,  59 

the  strength  of  statements  made  by  Pa.  St.  350;  Wilmington,  etc.,  R.  R. 

him.  Co.  V.  Ling,  18  S.  C.  116. 

36.  Franklin  Bank  v.  Cooper,  36  39.  Roper  v.  Sangamon  Lodsre,  91 
Me.  179,  29  Me.  542;  Franklin  Bank  111.  518;  Atlas  Bank  v.  Brownell,  9 
V.  Stevens,  39  Me.  532.  R.  I.  168. 


§§  289, 291  Suretyship  and  Guaeanty.  300 

a  defaulter.  Nor  will  the  negligence  of  the  bank  to  ascertain  that 
fact  discharge  the  surety/" 

§  289.  Principal  His  Own  Successor. — When  the  principal 
becomes  his  own  successor,  and  at  the  commencement  of  the  sec- 
ond term  makes  a  report  of  moneys  in  his  hands  and  gives  a  new 
bond  for  paying  over  such  moneys,  his  sureties  on  the  second  bond 
are  liable  for  the  amount  so  reported,  though  he  did  not,  in  fact, 
have  that  amount/^  They  are  liable  for  any  amount  which  ap- 
pears to  have  been  in  the  hands  of  the  principal  at  the  end  of  the 
preceding  official  term  as  set  forth  in  his  report.*^ 

§  290.     Continuing  Principal  in  Office  After  Known  Defaults. 

— Continuing  the  principal  in  office  after  his  defaults  are  known, 
without  notice  to  the  surety  is  held  not  to  discharge  him,  no  fraud 
or  dishonesty  being  shown  on  the  part  of  the  employer/^  Because 
it  is  the  business  of  the  surety  to  see  that  his  principal-  performs 
the  duty  which  the  surety  has  guaranteed,  and  not  the  obligee/* 
So  where  the  agent  is  bound  by  by-laws  of  a  corporation  to  render 
his  accounts  monthly,  but  fails  to  do  so  for  several  months,  and 
his  sureties  are  not  informed  of  the  defaults  by  the  obligee  for 
some  time  thereafter,  it  does  not  discharge  the  sureties/^ 

^  291.  Delinquency  of  Obligee. — The  obligee  owes  no  duty 
of  active  diligence  to  take  care  of  the  interest  of  the  surety.  It 
is  the  business  of  the  surety  to  see  that  his  principal  performs  the 
duty  which  he  has  guaranteed,  and  not  that  of  the  obligee,  or 

40.  Home  Ins.  Co.  v.  Halway,  55  44.  Tapley  v.  Martin,  116  Mass. 
Towa  571,  8  N.  W.  457;  Tapley  v.  275;  Wright  v.  Simpson,  6  Ves.  714. 
Martin,  116  Mass.  275;  Bowne  v.  45.  Kentucky. — Taylor  v.  Bank,  2 
Bank,    45    N.    J.    L.    361;    Wayne   v.  J.  J.  Marsh.  564. 

Bank,  52  Pa.  St.  343.  Massachusetts. — Watertown     Fire 

41.  Roper  v.  Sangamon  Lodge,  91  Ins.  Co.  v.  Simmons,  131  Mass.  85; 
III.  518.  Inhabitants  of  Town  of  Winthrop  v. 

42.  Morley    v.    Metamora,    78    111.  Soule,  175  Mass.  400,  56  N.  E.  575. 
294.  New    York. — McKenzie    v.    Ward, 

4S.  Watertown    Fire    Ins.    Co.    v.    58  N.  H.  541. 
Simmons,    131    Mass.    85;    Atlantic,       Ohio. — Bush  v.  Critchfield,  4  Ohio 
ptc,   Tel.   Co.   V.   Barnes,   64   N.   Y.    736. 

285.  Pennsylvania, — Pittsburg,  etc.,   R. 

R.  Co.  V.  Shaffer,  59  Pa.  St.  350. 


■301  BoNi>s  OF  Private  Officers  and  Agents.  §  292 

creditor/^  The  surety  is  bound  to  inquire  himself  and  cannot 
complain  that  the  obligee  does  not  notily  him  of  the  state  of  the 
accounts.  Mere  inaction  of  the  obligee  will  not  discbarge  the 
surety  unless  it  amounts  to  a  fraud  or  concealment.*'  Nor  will 
the  fact  that  the  obligee  neglects  to  ascertain  that  the  principal 
was  a  defaulter  before  giving  the  bond,  discharge  the  surety.** 

A^or  will  the  surety  on  a  bond  be  released  by  the  fact  that  a 
careful  examination  of  the  books  of  an  officer  of  a  corporation, 
which  books  were  open  to  their  inspection,  might  have  disclosed 
the  default.*^ 

§  292.  Failure  to  Discharge  Delinquents. — Sureties  are  not 
discharged  from  subsequent  liability  by  the  omission  on  the  part 
of  the  obligee  to  notify  them  of  the  default  of  their  principal 
known  to  the  obligee,  and  a  continuance  of  the  employment  after 
such  default,  in  the  absence  of  evidence  of  fraud  and  dishonesty 
on  the  part  of  the  principal.^'*  If  the  sureties  are  released  by 
acts  of  the  obligee  in  any  cases,  they  are  still  bound  for  prior  de- 
faults of  their  principal.^^ 

As  a  general  rule  sureties  are  not  relieved  from  liability  for 
moneys  for  which  the  principal  has  failed  to  account,  where  it 
does  not  appear  that  the  moneys  were  embezzled  or  the  obligee 
wrongfully  and  fraudulently  concealed  from  the  sureties  the 
neglect  and  irregularity  of  the  officer  in  the  performance  of  his 

46.  Atlas  Bank  v.  Anthony,  18  49.  McMullen  v.  Wingfield  Build- 
Pick.  (Mass.)  238.  ing  &  Loan  Ass'n,  64  Kan.  298,  67 

47.  Kentncky. — Batchelor  v.  Bank,   Pac.  892. 

78  Ky.  435.  50.  Gradle  v.  Hoffman,  105  111.  147; 

Massachusetts.  —  Watertown    Fire  Atlantic,  etc.,  Tel.  Co.  v.  Barnes,  64 

Ins.  Co.  V.  Simmons,  131  Mass.  85;  N.    Y.    385;    City    of   Harrisburg   v. 

Amherst  Bank  v.  Root,  2  Mete.  522.  Guiles,  192  Pa.   St.  191,  44  Atl.  48; 

New  Jersey. — Morris  Canal  v.  Van  Pittsburg,  etc.,  R.  R.  Co.  v.  Shaeffer, 

Vorst,  21  N.  J.  L.  100.  59  Pa.  St.  350. 

Fennsylvania. — Bayne  v.  Bank,  52       Compare  Moses  v.   United  States, 

Pa.  St.  343.  166  U.  S.  571,  17  Sup.  Ct.  682.  41  L. 

Rhode     Island.— Atlas     Bank     v.  Ed.  1119;  Phillips  v.  Foxall,  L.  R.  7 

Brownell,  9  R.  I.  168.  Q.  B.  666;  Sanderson  v.  Aston,  L.  R. 

England.— McTaggart    v.    Watson,  8  Exch.   73;    Burgess  v.  Eve,  L.  R. 

3  CI.  &  F.  536.  13  Eq.  450;  Montague  v.  Tidcombe,  2 

48.  Tapley    v.    Martin,    116    Mass.  Vern.  518. 

275;  Bowne  v.  Bank,  45  N.  J.  L.  360;  51.  State  Bank  v.  Chetwood,  8  N. 
Wryne  v.  Bank,  52  Pa.  St.  343.  J.  L.  1. 


§    293  SUKETYSIIIP   AND   GuAKANTY.  302- 

official  duties.^^  But  where  the  principal  embezzles  the  money  of 
the  obligee  who  fraudulently  conceals  the  fact  from  the  sureties, 
then  they  are  released  and  not  liable  for  subsequent  defalcations.^^ 

§  293.  Failure  to  Notify  Surety  of  Default. — The  sureties  on 
a  bond  are  not  entitled  to  notice  of  the  principal  s  default,  nor 
need  any  demand  be  made  upon  them  belore  action  brought  on 
the  bond."^  Mere  laches  of  the  obligee  unaccompanied  by  fraud 
will  not  discharge  the  sureties.  So,  where  the  obligee  delays  for 
a  long  time  to  notify  the  sureties  of  the  principal's  default,  or  to 
prosecute  on  the  bond  it  will  not  discharge  the  sureties.^^ 

To  avoid  a  bond  of  a  cashier  on  the  ground  of  fraud  on  the  part 
of  the  bank  or  its  directors,  a  fraudulent  concealment  of  some- 
thing material  for  the  surety  to  know  must  be  shown.^®  The  ob- 
ject of  such  bond  is  to  guarantee  the  bank  for  the  faithful  per- 
formance of  the  cashier's  duty,  and  the  obligation  is  not  to  be 
affected  by  the  neglect  of  the  bank,  and  such  negligence  will  not 
discharge  the  surety."  And  before  a  bond  in  such  case  can  be 
avoided,  fraud  and  bad  faith  which  has  misled  the  sureties  to 
their  damage,  must  be  brought  home  to  the  obligee  by  clear  and 
decisive  evidence."^  The  acceptance  of  the  resignation  of  the  prin- 
cipal and  election  of  his  successor  without  notice  to  the  sureties 

52.  Iowa,  —  Independent     School  Ass'n  v.  Smith,  70  Tex.  168,  7  S.  W. 

Dist.  of  Sioux  City  v.  Hubbard,  110  793. 

Iowa  58,  81  N.  W.  241.  53.  Bolz  v.  Stuhl,  4  Pa.  Super.  Ct. 

Kentucky.— Wade   v.    City   of   Mt.  52. 

Sterling,  18  Ky.  Law  Rep.  377,  33  S.  54.  Grocers  Bank  v.  Kingman,  16 

W.  1113.  Gray  (Mass.)  473. 

Massachnsetts. — Tapley  v.  Martin,  As  to  notice  of  default,  see  §  144a 

116  Mass.  275.  herein. 

Minnesota. — County    of     Pine     v.  55.  Morris  Canal  v.  Van  Vorst,  21 

Willard,  39  Minn.  125,  39  N.  W.  71.  N.  J.  L.   100;    Pittsburg,  etc.,  R.   R. 

New  York.— Bostwick  V.  Van  Voor-  Co.  v.  Shaeffer,  59  Pa.  St.  359;  Wil- 

his,  91  N.  Y.  353.  mington,  etc.,  R.  R.  Co.  v.  Ling,  18 

PennsylTania.  —  Harrisburg      v.  S.  C.  539. 

Guiles,  192   Pa.  St.   191,  44  Atl.  48;  56.  Atlas  Bank  v.  Brownell,  9  R. 

Farmers    &   Drovers'    Nat.    Bank    v.  I.  168. 

Rraden,  145  Pa.  St.  473,  22  Atl.  1045;  57.  Tapley    v.    Martin,    116    Mass. 

Home   Ins.    Co.   v.    Gow,   59    Pa.    St.  275. 

685;  Boreland  v.  Washington  County  58.  Bostwick  v.  Van  Voorhis,  91  N. 

20  Pa.  St.  1^^0.  Y.  353. 

Texas.  —  Screwmen's    Benevolent 


303  Bonds  of  Private  Officers  and  Agents.    §§  294,  29& 

does  not  relieve  them  from  liability  for  his  defaults  before  resigna- 
tion.°^ 

If  there  is  a  provision  in  the  bond  which  requires  the  obligee  to 
give  notice  of  the  default  of  the  principal,  the  giving  of  such  notice 
is  a  condition  precedent.*" 

§  294.  Covenant  Not  to  Sue. — A  covenant  not  to  sue  one  of 
several  sureties  will  not  discharge  the  others.  The  release  of  one 
of  joint  and  several  obligors  is  a  release  of  all,  but  a  covenant  not 
to  sue  one  of  several  obligors  can  never  have  the  effect  of  a  release, 
except  to  the  one  to  whom  it  is  given.*'^  So,  where  one  of  several 
obligors  or  sureties  is  given  an  instrument  by  the  obligee  coven- 
anting not  to  sue  him  for  default  of  his  principal,  it  operates  as 
an  absolute  release  and  acquittance  of  his  liability  on  his  prin- 
cipal's bond,  and  is  a  covenant  not  to  sue ;  but  none  of  the  other 
joint  and  several  sureties  is  released.^^ 

§  295.  Accord  and  Satisfaction. — The  principal  may  settle  his 
obligation  by  accord  and  satisfaction,  and  the  surety  thereby  be  re- 
leased. Thus,  when  the  principal  gives  his  note  for  settlement 
of  the  obligation,  which  is  accepted  as  an  absolute  payment  by  the 
obligee,  the  surety  held  by  the  obligation  is  released.*^  Because 
a  note  of  the  principal  given  and  received  in  satisfaction  by  ex- 
press agreement  will  be  considered  a  discharge  of  the  original  con- 
tract.^'* And  so  an  executed  parol  agreement  may  abrogate  a  bond 
or  sealed  instrument  in  many  jurisdictions.*^ 

§  296.  Notice  of  Surety's  Withdrawal — A  surety  can  with- 
draw from  the  bond  of  an  officer  of  a  corporation  by  giving  rea- 
sonable notice.     But  the  withdrawal  cannot  take  effect  immedi- 

59.  Stemmerman  v.  Lillienthal,  54  63.  Morris  Canal  v.  Van  Vorst,  21 
S.  C.  440.  N.  J.  L.  100. 

60.  Granite  Bldg.  Co.  v.  Saville's  See  as  to  payment  of  debt  dis- 
Adm'r,  101  Va.  217,  43  S.  E.  351.  charging  surety,  §  94. 

61.  Clark  v.  Mallory,  83  111.  App.  64.  Sheeby  v.  Mandeville,  6  Cranch 
488;  Crane  v.  Ailing,  15  N.  J.  L.  423;  (U.  S.)   253,  3  L.  Ed.  215. 

Dean    v.    Newhall,    2    Term   R.    168;  6.^.  Alschiiler  v.  Schiff,  lf;4  Til.  298, 

Thompson  v.  Lock,  3  M.  G.  &  S.  540.  45  N.  E.  424;   Talbut  v.  Whipple,  14 

62.  Bowne  v.  Bank,  45  N.  J.  L.  Allen  (Mass.)  177;  Allen  v.  Jaquish, 
360.  21  Wend.  (N.  Y.)  628. 


§§  2U7, 297a  Suretyship  and  Guaeanty.  304 

ately  upon  service  of  notice.  Because  the  directors  receiving  such 
notice  must  have  a  reasonable  time  to  act  and  to  give  notice  to  the 
principal  and  the  co-sureties  if  there  be  any,  and  time  to  procure 
a  new  bond.  Hence  such  notice  cannot  operate  immediately,  and 
does  not  affect  the  liability  of  the  other  sureties.^^ 

§  297.  Discharge  by  Acts  of  the  Obligee. — Acts  of  the  cor- 
poration may  be  such  as  to  discharge  the  sureties  v^ho  are  on 
the  bond  of  one  of  its  agents.  Thus,  the  sureties  on  a  treasurer's 
bond  are  not  liable  for  defaults  which  occurred  after  the  omission 
to  re-elect  him  at  a  regular  meeting  of  the  directors  of  the  corpora- 
tion for  that  purpose,  and  after  such  further  time  as  may  be  rea- 
sonably sufficient  for  the  election  and  qualification  of  his  successor, 
although  he  continues  to  act  as  treasurer,  and  his  re-election  takes 
place  at  the  next  meeting  thereafter. ^^  So  where  a  charter  is  for- 
feited the  sureties  on  a  cashier's  bond  are  not  liable  afterwards, 
though  a  statute  is  passed  reviving  the  charter.^*  So,  where  the  re- 
muneration of  the  principal  is  changed  so  as  to  make  a  different 
agency,  the  sureties  are  released.^ 

§  297a.  Departure  from  Terms  of  Contract. — A  material  de- 
parture from  the  terms  of  the  contract  of  suretyship  in  respect  to 
the  duties  of  the  employee,  such  as  releasing  him  from  the  obliga- 
tion to  make  weekly  reports  as  required  by  such  contract,  will 
release  the  surety.'"  There  may,  however,  be  a  departure  from 
the  contract  where  the  terms  thereof  may  be  so  construed  as  to 
authorize  such  a  change.  In  this  case  the  sureties  will  not  be 
released.''^ 

66.  Bostwick  v.  Van  Voorhis,  91  N.  Whinary,  10  Exch.  17;  Bamford  v. 
Y.  353.  lies,  3  Exch.  380. 

As  to  revoking  suretyship,  see  §  70.  Fidelity  Mutual  Life  Ass'n  v. 

87  herein ;  In  re  United  States  Fidel-  Dewey,  83  Minn.  389,  86  N.  W.  423. 

ity  &  Guaranty  Co.,  50  Misc.  R.  (N.  See,  as  to  change  of  the  principal 

Y.)  147,  98  N.  Y.  Supp.  217.  contract,  §§   TOO  et  seq.  herein. 

67.  Lexington,  etc.,  R.  R.  Co.  v.  71.  Travelers  Ins.  Co.  v.  Stiles,  82 
Elwell,  8  Allen  (Mass.)  371.  App.  Div.  (N.  Y.)  441,  81  N.  Y.  Supp. 

68.  Bank  of  Barrington,  2  P.  &  W.  664. 

(Pa.)  27.  See,  as  to  change  of  the  principal 

Compare  Union  Bank  v.  Forrest,  3  contract,  §§  100  et  seq  herein;  as  to 

Cranch  C.  C.  218.  building   contracts    and   change   au- 

69.  Northwestern    Railway   Co.    v.  thorized,  see  §  439  herein. 


305  Bonds  of  Private  Officers  and  Agents.    §§  298,  299 

8  298,  Action  on  the  Bond. — The  action  on  the  bond  is  often 
regulated  by  statute.  Thus,  in  Massachusetts,  the  sureties  on  a 
bond,  severally,  but  not  jointly,  may  be  joined  as  defendants  in 
one  action  on  the  bond.^"  The  sole  purpose  of  this  statute  is  to 
facilitate  proceedings  against  parties  severally  liable  on  the  same 
contract,  and  to  permit  their  rights  to  be  determined  under  one 
process,  instead  of  compelling  the  party  seeking  redress  to  resort 
to  several  actions.''^  If  the  bond  is  made  to  the  directors  instead 
of  the  corporation,  the  legal  effect  is  to  make  it  apply  to  the  cor- 
poration, which  may  bring  action  against  the  sureties.^*  If  the 
bond  is  given  to  the  directors  of  a  joint  stock  company,  who  are 
elected  annually,  such  directors  can  bring  action  on  the  bond  after 
they  have  ceased  to  be  directors.^'' 

If  a  surety  in  witness  of  his  obligation  to  perform  certain 
■covenants  and  conditions  affixes  his  hand  and  seal  to  the  instru- 
ment, and  delivers  it  as  his  bond,  it  is  adequate  to  bind  him,  al- 
though his  name  is  not  mentioned  in  any  part  of  the  body  of  the 
bond,  and  a  blank  for  it  is  left  unfilled.'^^  And  so  two  or  more 
obligors  may  adopt  one  seal  and  be  charged  as  obligors,  although 
the  names  of  all  the  signers  do  not  appear  in  the  body  of  the  bond.'^^ 

In  a  joint  action  against  a  cashier  and  his  sureties  the  ad- 
missions and  declarations  of  the  cashier  as  to  his  defaults  are  evi- 
dence against  his  sureties.''^  Because  the  principal  and  sureties 
are  all  bound  by  a  joint  obligation,  all  declarations  and  admis- 
sions of  the  principal  are  evidence  against  the  sureties  in  an  ac- 
tion against  them.'®  In  a  joint  and  several  bond  a  principal  is  not 
a  necessary  party  to  an  action  against  his  surety.^" 

§  299.  Sureties  Concluded  by  Recitals  in  a  Bond. — Sureties 
are  concluded  by  the  recitals  in  the  bond  which  they  have  exe- 

72.  Grocers  Bank  v.  Kingman,  16  77.  Building  Association  v.  Cum- 
Gray  (Mass.)  473.  mings,  45  Ohio  St.  664. 

73.  Fuller  v.  Morris,  4  Gray  78.  Amherst  Bank  v.  Root,  2  Met. 
(M?ss.)  295.  (Mass.)  522. 

74.  Bayle  v.  Ins.  Co..  6  Hill  (N.  79.  Pendleton  v.  Bank,  1  T.  B. 
y.)  476.  Mon.  (Ky.)  171,  181. 

75.  Anderson  v.  Longdon,  1  Wheat.  See,  also,  Union  Bank  v.  Ridgely, 
(U.  S.)  85,  4  L.  Ed.  42.  1  Har.  &  G.  (Md.)  327. 

76.  Scheid  v.  Liebschultz.  51  Ind.  80.  Whipp  v.  Casey,  21  R.  I.  508, 
38;    Danker   v.    Atwood,    119    Mass.  45  Atl.  93. 

146;    Howell   v.    Parsons,   89   N.   C. 
530. 

20 


§  300  (Suretyship  and  Guaranty.  306 

cuted.^^  Thus,  where  a  cashier's  bond  recites  that  he  had  been 
appointed  hy  the  board  of  directors,  such  recital  is  conclusive  on 
the  sureties.^^  And  so  when  the  recital  states  that  a  certain  per- 
son has  been  appointed  an  officer  or  agent,  the  surety  cannot  con- 
tradict this  by  showing  that  the  appointment  was  in  fact  subse- 
quent to  the  date  or  even  to  the  delivery  of  the  bond.*^  When  the 
condition  of  the  bond  is  plainly  set  forth  it  cannot  be  controlled 
by  any  recitals  not  plainly  inconsistent  therewith.^* 

§  300.  Liability  for  Loss  of  Money. — An  agent  or  officer  of  a 
corporation  is  required  to  use  reasonable  diligence  in  taking  care 
of  money  coming  into  his  hands.  If  he  does  this  he  and  his  sure- 
ties are  not  liable  for  loss.  Thus,  an  agent  of  a  railroad  company 
who  has  exercised  due  care  and  diligence,  and  kept  the  money  as 
required  by  the  corporation,  and  it  is  stolen,  he  and  his  sureties 
are  not  liable.^^  So  where  a  party  receives  public  moneys,  but 
is  not  a  public  officer  and  disburser  of  the  money,  and  uses  due 
diligence,  and  the  money  is  lost  or  stolen,  he  is  not  liable  therefor. 
Thus,  a  surrogate  is  not  a  public  officer  appointed  to  receive  or 
disburse  public  money,  and  it  is  not  his  main  duty  to  receive, 
keep  or  disburse  the  money  of  individuals.  He  is  a  mere  trustee 
or  agent  of  the  private  parties  whose  money  comes  into  his  hands 
by  order  of  court.  So  if  he  deposits  such  money  in  a  bank  which 
fails,  without  neglect  on  his  part,  he  and  his  sureties  are  not 
liable  for  the  money  lost  by  such  failure.^® 

81.  Thompson  v.  Denner,  16  App.  83.  Washington  Co.  v.  Ins.  Co.,  26 
Div.  (N.  Y.)  160,  44  N.  Y.  Supp.  723;    Conn.  42. 

Cutler  V.  Dickinson,  8  Pick.   (Mass.)  84.  Australian  Joint  Stock  Bank  v. 

387.  Bailey  (1899),  App.  Cas.  396. 

As  to  estoppel  to  deny  recitals  in  85.  Chicago,  B.  &  Q.  R.  Co.  v.  Bart- 
bond,  see  §§  59  et  seq.  herein.  lett,  120  111.  603,  11  N.  E.  867. 

82.  Lionberger  v.  Kreiger,  88  Mo.  86.  People  v.  Faulkner,  107  N.  Y^ 
160.  477,  14  N.  E.  415. 


307  Bonds  of  Public  Officers  and  Awents. 


CHAPTER  XII. 

BONDS  OF  PUBLIC  OFFICERS  AND  AGENTS 

Section  301.  Extent  of  Surety's  Liability. 

302.  Liability  of  Surety  for  Previous  Defaults  of  Officer. 

303.  Presumption  as  to  Sureties  on  Second  Bond. 

304.  De  Facto  Officers. 

305.  Officers  Holding  Over. 

306.  Death  of  Officer. 

307.  Money  Used  to  Cover  Previous  Delinquencies. 

308.  Giving  Second  Bond  in  Same  Term. 

309.  Giving     Bond     without     Statutory     Authority  —  Non-com- 

pliance with  Statute. 

310.  General  and  Special  Bonds  Given  by  an  Officer. 

311.  Sureties  are  Liable  Only  for  Their  Principal's  Official  Acts. 

312.  Subsequently  Imposed  Duties. 

313.  Subsequently  Imposed  Duties  by  the  Legislature. 

314.  The  State  is  not  Responsible  for  Its  Officers'  Acts. 

315.  Forgery  of  Prior  Surety's  Name. 

316.  Money  Lost  or  Stolen  from  Principal. 

317.  Depositing  Public  Money  in  Bank. 

318.  Making  Profits  on  Public  Funds. 

319.  Interest  Recovered  After  Breach. 

320.  Liability  of  Sureties  as  to  Payment  of  Penalties'. 

321.  Estoppel  by  Judgment. 

321a.  Construing  Bonds  with  Reference  to  Statute. 

322.  Sheriffs  and  Constables. 

323.  Scope  of  Liability. 

324.  Levying  on  a  Stranger's  Property  and  on  Property  Exempt. 

325.  Officers  Liable  for  Ministerial  Duties. 

326.  Duty  of  Individuals  and  to  the  State, 

327.  Amount  of  Sureties'  Liability. 

328.  Liability  of  Sureties  After  Term  Expires. 

329.  Sureties'  Liability  on  Bonds  of  Clerks  of  Court. 

330.  Compensation  of  Clerks. 

331.  Failure  to   Pay  Over  to   Successor  in   Office  or  to  Proper 

Party. 

332.  Money  Paid  Into  Court  or  by  Order  of  Court. 

333.  Delinquencies  of  Clerks. 

334.  Sureties  of  Justices  of  the  Peace. 

335.  Police  Officer. 

336.  Sureties  of  Notary  Public. 

337.  Tax  Collector. 

338.  Subrogation  of  Sureties  on  Official  Bond. 


§    301  SUKETYSHIP  AND  GUARANTY.  308 

Sec.  301.  Extent  of  Surety's  Liability. — The  liability  of  a 
surety  is  not  to  be  extended  by  implication  beyond  the  terms  of 
his  contract.  When  he  signs  the  bond  of  a  public  officer  he  un- 
dertakes to  be  responsible  for  the  principal's  official  acts  during 
the  term  of  his  office.^  So  the  sureties  are  liable  for  all  moneys  re- 
ceived in  an  official  capacity  by  their  principal,  or  in  his  hands 
during  the  term  of  office,  but  not  for  his  wrongful  acts  before  they 
became  responsible  for  his  official  conduct  by  signing  his  bond.' 

1.  Ladd  V.  Trustees,  80  111.  234;  Who  may  sue.  A  private  individ- 
Rochester  v.  Randall,  105  Mass.  295.    ual  Cannot  sue  on  bond    (Clough  V. 

The  rule  which  favors  sureties  is  Worsham,  32  Tex.  Civ.  App.  187,  74 
not  applied  with  strictness  in  de-  s.  w.  350).  Nor  can  such  person  re- 
termining  the  liability  of  sureties  on  cover  on  the  bond  unless  the  statute 
official  bonds.  Holthouse  v.  State  authorizes  it  (Eaton  Rapids,  City  of, 
(Ind.  App.  1912),  97  N.  E.  130.  to  Use  of  Snyder  v.  Stump,  127  Mich. 

Examine  United  States  v.  Boyd  1,  86  N.  W.  438,  8  Det.  Leg.  N.  206), 
(U.  S.  C.  C),  118  Fed.  89,  holding  and  without  showing  violation  of 
that  bond  of  a  consul-general  is  to  some  special  duty  to  him.  State  v. 
be  strictly  construed.  Stout,  26  Ind.  App.  446,  59  N.  E.  109. 

Acts  done  under  color  of  office  are  A  city  clerk's  bond  covers  acts 
covered  by  such  a  bond.  Hall  v.  done  by  an  assistant  of  his  within 
Tierney,  89  Minn.  407,  95  N.  W.  219;  the  official  scope  of  his  duties.  But- 
State  v.  Ryland,  163  Mo.  280,  63  S.  ler  v.  City  of  Milwaukee,  119  Wis. 
W.  819.  526,  97  N.  W.  185. 

But  see  State  v.  Porter,  69  Neb.  Consul-general.  Bond  of  to  be 
203,  95  N.  W.  769.  strictly  construed.     United  States  v. 

See  §  304  herein,  as  to  de  facto  of-    Boyd   (U.  S.  C.  C),  118  Fed.  89. 
ficers.  County  treasurer's  bond.    Loss  or 

A  judgment  against  the  principal  destruction  of  some  of  the  records 
is  prima  facie  evidence  against  the  or  vouchers  does  not  prevent  recov- 
sureties.  Barker  v.  "Whaler,  60  Neb.  ery  on  bond.  Montmorency  County  v. 
470,  83  N.  W.  678,  so  holding  in  case  Wiltse,  125  Mich.  47,  83  N.  W.  1010, 
of  bond  of  a  county  judge.  7  I>et.  Leg.  N.  407. 

Bond  presumed  to  be  for  term  for  Bond  for  county  work  an  official 
which  official  appointed,  where,  by  bond.  A  bond  given  by  one  who  has 
the  terms  of  the  bond  it  is  for  the  entered  into  a  contract  for  county 
term  "  hereinafter  specified  "  and  work  under  a  statute  providing  that 
none  is  specified.  City  of  Camden  v.  official  bonds  shall  not  be  vitiated 
Greenwald,  65  N.  J.  L.  458,  47  Atl.  by  defects  therein,  is  an  official 
458.  bond  within  the  meaning  of  such  act. 

Sureties  estopped  to  allege  that  Holthouse  v.  State  (Ind.  App.  1912), 
principal    was    ineligible    for   office.    97  N.  E.  130. 

Hogue    V.    State    ex    rel.    Board    of       2.  Georgia. — Graham     v.     City    of 
School  Com'rs,  28  Ind.  App.  285,  62    Baxley,  117  Ga.  42,  43  S.  E.  405. 
N.  E.  656. 


30J9 


Bonds  of  Public  Officers  and  Agents. 


§  301 


So  when  money  has  been  received  and  converted  by  the  officer 
during  a  prior  term,  the  sureties  on  a  subsequent  bond  are  not 
liable  for  such  past  default.^  The  sureties  are  only  liable  for  the 
misconduct  of  the  officer  in  his  official  capacity  during  his  term, 
when  they  were  his  surety.*    And  until  the  sureties  are  accepted 


Illinois. — Stern  v.  People,  96  111. 
475;  Morley  v.  Metamore,  76  111.  396. 

Indiana. — Parker  v.  Medsker,  80 
Ind.  155. 

Michigan. — Detroit  v.  Weber,  29 
Mich.  24. 

Missouri. — State  v.  Alsup,  91  Mo, 
172. 

Nebraska, — Van  Sickel  v.  Buffalo 
Co.,  13  Neb.  103,  13  N.  W.  19. 

See,  as  to  liability  for  previous  de- 
faults, §  302  herein. 

Sureties  are  insurers  as  to  funds 
coming  into  hands  of  the  principal. 
Ramsay's  Estate  v.  People,  97  111. 
App.  283;  Swift  v.  Trustees  of 
Schools,  91  111.  App.  221,  affirmed 
189  111.  584,  60  N.  E.  44;  Smith  v. 
Patton,  131  N.  C.  396,  42  S.  E.  849. 

Only  act  of  God  or  the  public 
enemy  excuses  failure  to  account 
for  public  funds.  Pond  v.  United 
States,  111  Fed.  989,  49  C.  C.  A.  582. 

The  Burden  of  proof  is  on  defend- 
ants in  an  action  against  the  prin- 
cipal and  his  sureties  to  show,  where 
it  is  alleged  that  moneys  in  his 
hands  have  not  been  turned  over  to 
his  successor,  the  reason  why  they 
have  not.  Ramsay's  Estate  v.  Peo- 
ple, 97  111.  App.  283,  affirmed  197  111. 
572,  64  N.  E.  549. 

See,  also.  Swift  v.  Trustees  of 
Schools,  91  111.  App.  221,  affirmed 
189  III.  584,  60  N.  E.  44,  as  to  burden 
of  proof  on  sureties  to  show  lawful 
expenditure  of  funds. 

It  is  a  question  for  jury  as  to  what 
Is  a  refponpble  time  within  which 
funds   should   be   turned  over  to  a 


successor.    City  of  Camden  v.  Green- 
wald,  65  N.  J.  L.  458,  47  Atl.  458. 

Bond  of  Collector  of  internal  reve- 
nue. Liable  for  failure  to  account 
for  public  funds,  except  where 
due  to  act  of  God  or  public 
enemy.  Pond  v.  United  States,  111 
Fed.  989,  49  C.  C.  A.  582. 

Bond  of  county  clerk.  Liable  for 
fees  coming  into  his  hands  from  any 
source  whatever.  Kingman  v.  Peoria 
County,  96  111.  App.  417. 

Bond  of  county  judge.  Liable  for 
conversion  of  funds  received  by  him 
in  his  official  capacity.  Barker  v. 
Wheeler,  60  Neb.  470,  83  N.  W.  678. 

Bond  of  county  treasurer.  Liable 
for  payment  by  such  official  of  fraud- 
ulent refundment  and  redemption 
orders.  Board  of  Com'rs  of  Ramsey 
County  V.  Elmund,  89  Minn.  56,  93 
N.   W.   1054. 

Compare  State  v.  Weeks,  92  Mo. 
App.  359. 

Bond  of  notary.  Liable  for  appro- 
priation of  money  of  plaintff  suffi- 
cient to  pay  for  cancellation  of  mort- 
gage. Stork  V.  American  Surety  Co., 
109  La.  713,  33  So.  742. 

Bond  of  overseer  of  poor.  See 
Town  of  Goshen  v.  Smith,  61  App. 
Div.  (N.  Y.)  461,  70  N.  Y.  Supp.  623, 
affirmed  173  N.  Y.  597,  65  N.  E.  1123. 

Bond  of  School  treasurer.  Liable 
for  moneys  given  to  him  though 
given  irregularly.  Hogue  v.  State, 
28  Ind  App.  285,  63  N.  E.  799. 

3.  Bissell  V.  Saxton,  66  N.  Y.  55. 

4.  California.  —  People  v.  Smith, 
123  Csbi.  70,  55  Pao.  765. 


§  301 


Suretyship  and  Guaranty. 


310 


by  the  obligee,  they  are  at  liberty  to  revoke  the  bond.  But  until 
they  signify  an  intention  to  recede,  the  ^tate  may  bind  them  by 
accepting  their  offer  to  answer  for  the  official  misconduct  of  their 
principal.^  And  the  principal  in  an  official  bond  has  the  implied 
agency  to  deliver  it  as  the  contract  of  the  sureties.^ 

When  the  surety  signs  a  bond  the  law  raises  an  implied  promise 
by  the  principal  to  reimburse  the  surety  for  any  loss  which  he 
may  sustain,  and  when  the  loss  occurs  this  implied  contract  of 
indemnity  relates  back  and  takes  effect  from  the  time  when  the 
surety  became  responsible.^  An  illegal  agreement  by  a  public 
officer  to  deposit  public  funds  in  a  bank  represented  by  his  sure- 
ties, upon  which  agreement  they  sign  the  bond,  is  so  blended  with 
the  officer's  implied  promise  to  indemnify  the  sureties  against  loss 
that  the  implied  promise  cannot  be  enforced  by  them.  Because 
the  law  will  not  enforce  an  implied  promise  of  indemnity  resting 
upon  an  illegal  consideration  that  a  bank  would  borrow  money 
and  pay  interest  on  it ;  the  parties  in  such  case  are  all  engaged  in 
the  illegal  enterprise,  and  all  are  equally  involved.^ 


Indiana. — State  ex  rel.  Wyatt  v. 
Bagby,  160  Ind.  669,  67  N.  E.  519; 
State  V.  Flynn,  157  Ind.  52,  60  N.  E. 
.684. 

Kansas. — Wilson  v.  State,  67  Kan. 
-44,  72  Pac.  517. 

Kentucky. — American  Bonding  & 
Trust  Co.  V.  Blount,  23  Ky.  Law  Rep. 
1,632,  65  S.  W.  806;  Coleman  v. 
Eaker,  23  Ky.  Law  Rep.  513,  63  S. 
W.  484. 

Michigan. — Cheboygan  Co.  v.  Er- 
ratt,  110  Mich.  156,  67  N.  W.  1117. 

Missouri.  —  Pundman  v.  Schoen- 
lich,  144  Mo.  149,  45  S.  W.  1112. 

^"ebraska. — State  v.  Moore,  56  Neb. 
82,  76  N.  W  474. 

New  York. — De  Sisto  v.  Stimmel, 
58  App.  Div.  486,  69  N.  Y.  Supp.  431. 

The  bond  may  by  its  terms  be  a 
continuing'  one  covering  more  than 
one  term  of  office.  Newburyport  v. 
Davis,  209  Mass.  126,  95  N.  E.  1110. 

The  sureties  are  only  liable  for 


the  term  for  which  their  bond  is 
given  and  it  is  not  material  that  the 
bond  does  not  express  the  obliga- 
tion, as  the  law  determines  it. 
United  States  Fidelity  &  Guaranty 
Co.  v.  Faulkner,  144  Ky.  629,  139  S. 
W.  853. 

5.  State  v.  Dunn,  11  La.  Ann.  550; 
Paxton  V.  State,  59  Neb.  460,  81  N.  W. 
383. 

6.  Pequawket  Bridge  v.  Mathis,  8 
N.  H.  139;  King  Co.  v.  Ferry,  5 
Wash.  536,  32  Pac.  538. 

7.  Ramsey  v.  Whitbeck,  183  111. 
550,  56  N.  E.  322;  Choteau  v.  Jones, 
11  111.  300;  Rice  v.  Southgate,  16 
Gray  (Mass.)  142. 

As  to  liability  of  principal  to 
surety,  see  §§  174  et  seq.  herein. 

Has  right  to  contribution  from 
other  sureties.  Carter  v.  Fidelity  & 
Deposit  Co.,  134  Ala.  369,  32  So.  632. 

8.  Ramsay  v.  Whitbeck,  183  111. 
550,  56  N.  E.  322. 


311  Bonds  of  Public  Officers  a.\d  Agents.  §  3U2 

§  302.  Liability  of  Surety  for  Previous  Defaults  of  the  Officer. 
— In  the  absence  of  statute  providing  otherwise,  or  of  expr.jss 
stipulation  in  the  bond,  sureties  on  otiicers'  bonds  are  not  liable  for 
the  defaults  of  their  principal  occurring  before  the  execution  of 
the  bond.  And  the  fact  that  the  principal  is  the  incumbent  of  the 
same  office  for  successive  terms,  does  not  change  the  rule,  since, 
in  such  cases,  the  sureties  on  the  last  bond  must  be  treated  and 
considered,  and  the  extent  of  their  liability  determined  as  far  as 
practicable,  as  if  their  principal  had  not  been  the  incumbent  for 
the  preceding  term.^ 

But  where  a  bond  issued  by  a  surety  company  was  conditioned 
for  the  faithful  discharge  of  the  official  duties  of  a  supervisor, 
.and  that  he  would  account  for  all  moneys  and  property  belonging 
to  the  town  and  coming  into  his  hands  as  such  supervisor,  which 
bond  was  issued  on  his  application,  by  which  he  agreed  to  pay 
a  certain  premium  per  annum  in  advance,  during  the  continuance 
of  the  bond,  and  there  was  no  time  stated  in  either  the  bond  or  the 
application  for  its  expiration,  and  the  supervisor  was  afterwards 
re-elected  for  another  term  and  paid  the  premium,  but  gave  no 
new  bond,  the  liability  of  the  surety  company  was  held  to  continue 


9.  United  States. — Farrar  v.  United  New  York. — Bissell  v.  Sexton,  66 

States,    5    Pet.    373,    8    L.    Ed.    159;  N.   Y.   60.     See  Town  of  Gfoshen   v. 

United  States  v.  Boyd,   15  Pet.   187,  Smith,    61    App.    Dv.    461,   70    N.    Y. 

10  L.  Ed.  706.  Supp.  623. 

Alabama.— McPhillips  v.  McGrath,  Wisconsin.— Vivian  v.  Otis,  24  Wis. 

117  Ala.  549,  23  So.  721;   Townsend  518. 

V.  Everett,  4  Ala.  607.  That   sureties   are  not  liable   for 

Idaho. — Work  Bros.   v.   Kinney,  8  past  defaults  of  principal,  see  §  69 

Ida.  771,  71  Pac.  477.  herein. 

Indiana.— Gonser  v.  State  ex  rel.  By   the   Public    Officers'   Law    in 

Haskins,  30  Ind.  App.  508,  65  N.  E.  New  York,  Laws  of  1892,  chap.  681, 

764.  the  sureties  on  a  county  treasurer's 

Kansas. — See   Weakley  v.   Cherry  bond  are  liable  for  acts  of  his  in  the 

Tp.,  62  Kan.  867,  63  Pac.  433.  interval  between  the  time  that  the 

Michigan. — Detroit    v.    Weber,    29  bond  was  required  by  resolution  of 

Mich.  24.  the  supervisors  and  the  time  it  was 

Minnesota.  —  Board  of   Education  delivered.      Waydell    v.     Hutchison, 

of  Preston  Independent  School  Dist.  146  App.  Div.  (N.  Y.)   448,  131  N.  Y. 

No.  45  v.  Robinson,  81  Minn.  305,  84  Supp.  315. 
N.  W.  105 ;  State  v.  Bobleter,  83  Minn. 
479,  86  N.  W.  461. 


§§  303, 304  .Suretyship  and  Guaeanty.  312 

for  the  proper  discharge  of  the  duties  by  the  supervisor  after  the 
expiration  of  his  original  term.^° 


§  303.  Presumption  as  to  Sureties  on  a  Second  Bond. — No 
presumption  arises  against  the  sureties  on  a  second  oMciai  bond, 
that  moneys  which  came  into  the  principal's  official  possession, 
while  a  iormer  bond  was  in  force,  were  in  his  hands  when  the 
second  bond  was  executed ;  but  each  case  must  be  governed  by  its 
own  particular  facts  and  circumstances.^^ 

Some  courts  state  the  doctrine  still  stronger,  that  there  is  no 
presumption  as  against  the  sureties  on  a  second  bond,  that  the 
money  which  came  into  the  possession  of  the  principal  while  a 
former  bond  was  in  force,  is  still  in  his  hands  when  the  second 
was  executed,  thereby  making  the  second  sureties  liable.^^  But  it 
is  the  better  rule  that  each  case,  as  to  such  presumptions,  must  be 
governed  by  its  particular  facts  and  circumstances."  But  if  there 
is  no  evidence  whatever  to  determine  in  which  term  the  default 
occurred,  the  law  will  presume  that  it  occurred  in  the  last  tenn.^* 


§  304.  De  Facto  Officers. — Where  it  appears  that  a  party 
elected  or  appointed  to  a  public  office,  has  executed  a  bond,  but 
has  not  qualified  according  to  law,  and  takes  possession  of  the 
office  by  color  of  right,  he  is  a  de  facto  officer,  and  the  sureties  on 
his  bond  are  liable  for  his  official  defaults.  A  person  being  an 
officer  de  facto  will  not  be  permitted  to  show  or  rely  upon  the  fact 
that  he  was  not  an  officer  de  jure  for  the  purpose  of  attacking  and 
setting  aside  anything  which  he  may  have  done  in  his  official  ca- 

10.  Town  of  Whitestown  v.  Title  Indiana. — Goodwin  v.  State,  81 
Guaranty  &  Surety  Co.,  72  Misc.  R.    Ind.  109. 

(N.  Y.)   498,  131  N.  Y.  Supp.  390.  Iowa.— Bockenstedt  v.  Perkins,  72 

11.  McPhillips     V.     McGrath,     117    Iowa  23,  34  N.  W.  488. 

Ala.  549,  23  So.  721.  Minnesota.  —  County    of    Pine    v. 

12.  Myers  v.  United  States,  1  Mc-  Willard,  39  Minn.  125,  39  N.  W.  71. 
Lean  493.  Ohio.— Kelly  v.  State,  25  Ohio  567. 

13.  Williams  v.  Harrison,  19  Ala.  Wisconsin. — Clark  v.  Wilkinson,  59 
277;  McPhillips  v.  McGrath,  117  Ala.  Wis.  543,  18  N.  W.  481. 

549,  23  So.  721.  Compare  Trustees  v.  Smith,  88  111. 

14.  Illinois. — Kagey  v.  Trustees,  68  181 ;  Phipsbury  v.  Dickinson,  78  Me. 
111.  75.  457. 


313  Bonds  of  Public  Officers  and  Agents.  §  305 

pacity ;  and  upon  like  reasons  his  sureties  are  also  estopped.^^  So 
where  the  election  of  a  sheriff  was  void,  and  his  induction  into 
office  illegal,  he  becomes  an  officer  de  facto,  but  not  de  jure,  and 
those  on  his  voluntary  bond  as  sureties  carniot  absolve  themselves* 
from  liability  by  insisting  that  he  was  not  sheriliV''  And  a  per- 
son who  discharges  the  duties  of  a  public  officer  under  color  of 
right,  is  an  officer  de  facto,  and  not  a  mere  intruder,  and  his  sure- 
ties are  estopped  by  the  recitals  in  his  official  bond  from  denying 
that  he  was  entitled  to  the  office." 

§  305-  Officers  Holding  Over. — A  bond  or  obligation  given  to 
secure  the  performance  of  official  duties,  is  to  be  construed  with 
reference  to  the  term  for  which  the  incumbent  is  elected  or  ap- 
pointed ;  and  the  law  governing  as  to  term,  its  time  of  commence- 
ment and  expiration,  and  the  conditions  and  contingencies  upon 
which  it  shall  begin,  continue  and  come  to  an  end,  enters  into  and 
forms  a  part  of  such  bond  or  obligation  where  general  language 
is  used  in  stipulating  the  conditions.  The  sureties  upon  such 
undertaking  are  presumed  to  know  the  duration  and  term  when 
they  become  parties  to  such  bond,  and  to  have  intended  to  bind 
themselves  to  the  extent  and  for  and  during  the  time  that  their 
principals  were  bound.^^    And  where  it  is  provided  by  law  that  a 

15.  Connecticut.  —  Plymouth  v.  Scott,  53  Neb.  176,  73  N.  W.  681; 
Painter,  17  Conn.  585.  State  v.  Rhoades,  6  Nev.  352. 

Illinois. — Chicago  v.  Gage,  95  111.  Compare  State  v.  Porter,  69  Neb. 

593;   Green  v.  Wardwell,  17  111.  278.  203,  95  N.  W.  769. 

Iowa, — Boone    Co.    v.    Jones,    54  18.  Connecticnt. — Welch    v.    Sey- 

lowa  699,  2  N.  W.  987,  7  N.  W.  155.  mour,  28  Conn.  393. 

Massachusetts. — Buckman  v.  Rug-  Delaware. — May  v.  Horn,  2  Harr. 

gles,  15  Mass.  180.  190. 

Nebrasta. — Holt  County  v.  Scott,  Illinois. — See  Ramsay's  Estate  v. 

53  Neb.  176,  73  N.  W.  681.  People,  197  111.  572,  64  N.  E.  549,  af- 

New   York. — People   v.   Collins,    7  firming  97  111.  App.  283. 

Johns.  549.  Indiana. — State  v.  Berry,  50  Ind. 

West  Virginia. — Reed  v.  Hedges,  16  496. 

W.  Va.  194.  Iowa. — Wapello  Co.  v.  Bigham,  10 

16.  Jones  v.   Scanland,  6  Humph.  Iowa  42. 

(Tenn.)  195.  Kansas. — Sparks  v.   Bank,  3   Del. 

17.  Hall  V.  Tierney,  89  Minn.  407,  Ch.  300;  Riddel  v.  School  Dist.,  15 
95  N.  W.  219;    State  v.  Ryland,  163    Kan.  168. 

Mo.  280,  63  S.  W.  819;  Holt  Co.  v,       Massachusetts.  —  Chelmesford  v.. 

Demorest,  7  Gray  1. 


§  305  Suretyship  and  Guaeanty.  314: 

public  officer  shall  hold  his  office  until  his  successor  is  appointed 
or  elected,  the  term  of  office  does  not  expire  until  he  leaves  the 
office,  as  he  continues  in  office  by  virtue  of  the  previous  election 
and  qualification.  Hence,  the  sureties  on  the  official  bond  of  such 
officer  who  holds  under  the  law  until  his  successor  is  appointed  or 
elected  and  qualified,  are  liable  for  defalcations  of  their  principal 
after  the  expiration  of  the  year,  while  holding  over  pending  the 
election  or  appointment  of  his  successor. ^^  The  official  acts  of  the 
principal  during  the  time  he  thus  holds  over  without  any  new  ap- 
pointment, come  within  the  term,  and  he  and  his  sureties  are 
liable  on  his  official  bond  given  at  the  time  of  the  qualification.^" 
And  a  similar  view  is  held  where  the  bond  contains  such  a 
recital.^^ 


Minnesota. — Scott  Co.  v.  Ring,  29  Mississippi. — Thompson   v.    State, 

Minn.   401.  37  Miss.  518. 

Missouri. — Savings  Bank  v.  Hunt,  Missouri. — State  v.  Kurtzebone,  78 

72  Mo.  597.  Mo.  99;  Long  v.  Seay,  72  Mo.  648. 

New  Hampshire. — Dover  v.  Twom-  Nevada. — State   v.   Wells,    8   Nev. 

bly,  42  N.  H.  59.  105. 

New   Jersey. — Mayor   v.    Crowell,  Oregon. — Eddy     v.     Kincaid,     28 

40  N.  J.  L.  207.  Oreg.   537,  41   Pac.  156,  655;    Baker 

See   in   this   connection   §§   70,   71  City    v.    Murphy,    30    Oreg.    405,    42 

herein.  Pac.  133. 

Though    bond    does    not    specify  21.  Village   of   Laurium   v.   Mills, 

time  or  term  for  which  given  it  is  129  Mich.  536,  89  N.  W.  362,  8  Det. 

binding.     City  of  Camden  v.  Green-  Leg.  N.  1083. 

wald,  65  N.  J.  L.  458,  47  Atl.  458.  "  Until  his  successor  is  appointed." 

Can  not  alter  term  fixed  by  stat-  Such  a  clause  in  a  bond  is  held  to 

ute  and  stated  in  bond.     The  term  bind  the  surety  for  failure  to  turn 

of  the  bond  of  an  officer  to  a  county  over  funds  to  a  successor  within  a 

fixed  by  the  statute  and  expressed  reasonable   time.     City   of   Camden 

in  the  bond  may  not  be  shortened,  v.  Greenwald,  65  N.  J.  L.  458,  47  Atl. 

changed  or  avoided  by  the  fact  that  458. 

the   county   board  before   the   bond  "  For  and  during  such  succeeding 

was  made  or  accepted  called  for  a  terms  as  said  above  bounden  shall 

bond  with  a  shorter  term.     Empire  continue   to   perform   the   duties   of 

State  Surety  Co.  v.  Carroll  County  such  town  treasurer"  held  to  bind 

(U.  S.  C.  C.  A.  1912),  194  Fed.  593.  the  sureties  for  a  default  after  the 

19.  Baker  City  v.  Murphy,  30  Ore.  term  mentioned  in  the  bond  had  ex- 
405,  42  Pac.  133.  pired    though   there   was   no   power 

20.  Minnesota. — Taylor     v.     Sulli-  to  appoint  him  for  more  than  one 
van,  45  Minn.  309,  47  N.  W.  802.  term.    City  of  Camden  v.  Greenwald, 

65  N.  J.  L.  458,  47  Atl.  458. 


^15  Bonds  of  Public  Officers  and  Agents.  §  305 

Some  authorities  hold  that  the  officer  so  holding  over  after  the 
technical  term,  is  not  an  officer  de  jure,  and  that  the  time  inter- 
vening between  the  expiration  of  the  period  fixed  by  the  statute, 
and  the  election  and  qualification  of  a  successor,  is  not  a  part  of 
the  preceding  term,  and  that  the  holding  over  is  pro  tempore}'^ 
Aud  in  other  cases  it  is  held  that  the  holding  over  is  only  an  ac- 
ceptancy  of  that  proportion  of  the  successor's  term.^^  Again  it  is 
stated  that  this  liability  of  the  sureties  for  the  officer's  defaults 
who  holds  over,  is  an  exception  to  the  rule  that  the  liability  of  a 
surety  ends  with  the  expiration  of  the  principal's  term,  and  does 
not  continue  for  the  additional  time. 

But  whether  considered  as  an  exception  or  as  the  rule  itself, 
it  can  only  be  sustained  upon  the  principle  that  the  holding  over 
is  a  continuance  of  the  term,  and  together  with  the  technical  term 
constitutes  one  and  the  same  term.  But  where  the  legislature 
extends  the  term  after  the  execution  of  the  bond,  it  is  said  the 
rule  is  different.  Such  extension  will  be  an  impairment  of  the 
sureties'  contract ;  for,  at  the  time  of  assuming  the  obligation,  they 
could  not  have  had  in  mind  the  extended  period  which  the  legis- 
lature afterwards  saw  fit  to  add  to  the  term  fixed  by  law,  and  did 
not  engage  to  become  responsible  for  the  acts  of  their  principal 
during  the  added  time.^* 

But  other  courts  of  the  highest  standing  hold  a  different  view, 
which  cannot  be  reconciled  with  the  doctrine  that  the  sureties  are 
responsible  for  the  official  acts  of  the  principal  during  the  time 
of  holding  over.  They  hold  that  when  an  officer  holds  for  the 
definite  term  and  until  his  successor  is  elected  or  appointed,  the 
sureties  are  liable  only  for  a  reasonable  period  after  the  expira- 
tion of  the  technical  term,  for  the  election  and  qualification  of  the 
successor;  that  it  is  not  reasonable  to  suppose  that  the  sureties 
may  be  held  for  an  indefinite  time,  even  for  their  lifetime. ^^ 

22.  State  v.  Howe.  25  Ohio  St.  597.       Delaware.— Mayor     v.      Horn,     2 

23.  Riddell     v.     Schoot     Dist,     15    Harr.  (Del.)   190. 

"Kan.  170.  Massachusetts. — Chelmesford    Co. 

24.  King   Co.    v.    Ferry,    5    Wash.    v.  Demorest,  7  Gray  1. 

536_  New  Hampshire. — Dover  v.  Twom- 

Compare   People   v.   McHatton,   2  bly,  42  N.  H.  59. 

Gil.    (111.)    732.  New  Jersey. — Citizen's  Loan  Asso. 

ConnecticTit.— Welch  v.   Seymour,  v.  Nugent,  40  N.  J.  L.  215;  Mayor  t. 

28  Conn.  387.  Crowell,  40  N.  J.  L.  207. 


§    307  SUKETYSHIP  AND  GuAEANTY.  316 

§  306.  Death  of  Officer. — The  death  of  a  public  officer  during 
his  term  creates  a  vacancy,  but  does  not  change  his  obligations. 
And  so  where  the  money  is  not  paid  according  to  his  obligation 
to  his  successor,  the  sureties  on  his  bond  are  liable.^^  Because  the 
obligation  was  to  pay  over  to  the  proper  officer  the  money  in  his 
hands  at  the  termination  of  his  service,  in  whatever  way  that  event 
may  be  produced,  whether  by  resignation,  removal  or  death." 

The  rule  as  to  the  obligation  of  a  guarantor  in  respect  to  trans- 
actions occurring  after  his  death,  is  that  the  obligation  is  not 
affected  by  his  death,  if  the  contract  of  guaranty  is  one  from  which 
he  might  not  withdraw  upon  notice ;  if  he  could  have  done  so,  then 
his  death  will  give  the  effect  of  a  notice  of  withdrawal,  as  held  by 
some  courts;^*  but  other  decisions  hold  that  before  his  death  i» 
notice,  it  must  be  brought  home  to  the  obligee.^'  And  so  where 
the  surety  cannot  be  released  without  the  consent  of  the  obligee, 
his  death  makes  his  estate  liable  for  defaults  of  his  principal.^" 

But  where  a  constable  died  before  the  expiration  of  the  time 
within  which  to  make  a  return  it  is  held  that  no  action  can  be 
maintained  on  his  bond  for  said  failure.^^ 

§  307.  Money  Used  to  Cover  Previous  Delinquencies. — Sure- 
ties on  a  second  bond  are  responsible  for  public  money  received 
during  the  second  term,  which  is  applied  to  cover  a  previous  de- 
linquency under  a  former  bond,  because  it  is  a  misapplication  of 
money .^^  Thus,  where  a  collector  receives  taxes  for  a  particular 
year,  and  instead  of  having  them  applied  to  the  credit  of  the  taxes 
for  that  year  with  which  he  is  chargeable,  directs  their  application 
to  the  discharge  of  his  defaults  for  previous  years,  such  applica- 
tion is  a  breach  of  his  official  bond,  for  which  his  last  sureties  are 

26.  Great  Falls,  City  of  v.  Hanks,  Mass.  112,  22  N.  E.  765;  Coulthart 
21  Mont.  83,  52  Pac.  785.  v.  Clemenson,  5  Q.  B.  Div.  42. 

27.  Allen  v.  State,  6  Blackf.  (Ind.)  UO.  Fewlass  v.  Keesham,  88  Fed. 
252.  573;  Holden  v.  Jones,  7  Ired.  L.  (N. 

28.  Moore  v.  Wallis,  18  Ala.  458;  C.)    191. 

Voris  V.  State,  47  Ind.  355;  Green  v.       31.  Moore  &  Co.  v.  Rooks,  71  Ark. 

Young,  8  Me.   14;    Lloyd  v.  Harper,  562,  76  S.  W.  548. 
16  Ch.  Div.  290;   Calvert  v.  Gordon,       32.  Coleraine     v.     Bell,     7     Met. 

3  Man.  &  R.  124.  (Mass.)  499;  County  of  Pine  v.  Wil- 

29.  Gay  v.  Ward,  67  Conn.  147,  34  lard,  39  Minn.  125,  39  N.  W.  71; 
Atl.  1025;  Jordan  v.  Dobbins,  122  State  v.  Seoy,  39  N.  J.  L.  539; 
Mass.   168;    Hyland   v.   Habich,   150  Gwynne  v.  Burnell,  7  CI.  &  F.  572. 


317  Bonds  of  Public  Officers  and  Agents.     §§  308,  309 

responsible.^^  Paying  money  received  in  a  subsequent  term  to 
make  satisfaction  of  defalcations  occurring  in  a  prior  term  is  a 
breach  of  his  last  bond,  as  a  misappropriation  of  money  received 
in  his  official  capacity,  and  his  last  sureties  are  liable  for  such 
breach  as  if  he  had  paid  it  out  for  any  other  purpose  not  in  his 
official  capacity.^* 

§  308.  Giving  Second  Bond  in  Same  Term. — Giving  an  addi- 
tional bond  during  the  same  term  of  office  does  not  necessarily 
discharge  the  sureties  on  the  first  bond.  The  sureties  on  the  first 
bond  are  not  released,  because  tbe  second  bond  does  not  operate 
as  a  merger  or  extinguishment  of  the  first  security,  as  it  is  of  no 
higher  degree,^  and  is  to  be  treated  as  a  concurrent  security  with 
the  original  bond.^®  Thus,  where  a  sheriff,  on  the  order  of  the 
court,  gives  an  additional  bond,  either  or  both  sets  of  sureties  are 
liable  to  a  party  injured  by  the  official  acts  of  the  sheriff."  So 
where  a  city,  according  to  law,  exacts  another  bond,  this  does  not 
release  the  sureties  on  the  first  bond.^* 

In  giving  a  second  bond,  the  sureties  are  only  liable  for  such 
acts  as  are  thereafter  done  by  the  principal,  unless  the  stipulations 
in  the  bond  or  the  statute  provide  that  the  second  sureties  shall 
be  liable  for  prior  as  well  as  subsequent  delinquencies  of  the 
•officer.^' 

§  309.  Giving  Bond  Without  Statutory  Authority. — Non- 
compliance vnth  Statute. — In  some  instances  an  officer  has  been 
required  to  give  a  bond  which  is  not  required  by  statutory  pro- 

83.  Frownfelter   v.   State,   66   Md.       36.  Allen    v.    State,    61    Ind.    268; 

80,  5  Atl.  410.  State  v.   Sappington,   67   Mo.   529. 

34.  Gwynne  v.  Burnell,  7  CI.  &  F.        37.  State  v.  Crooks,  7  Ohio  573. 
572.  38.  New    Orleans    v.    Gauthreaux, 

35.  Postmaster-General     v.     Mun-  39  La.  Ann.  109. 

ger,  2  Paine  189;  Fidelity  &  Deposit       39.  Cullom  v.  Dolloff,  94  111.  330; 

Co.  of  Maryland  v.  Fleming,  132  N.  Jones,  v.  Gallatine  Co.,  78  Ky.  491; 

•C.  332,  43  S.  E.  899;   Hand  Mfg.  Co.  McPhillips  v.  McGrath,  117  Ala.  549, 

V.  Marks,  36  Oreg.  523,  52  Pac.  512,  23  So.  721;   Schuff  v.  Pflanz,  99  Ky. 

53  Pac.  1072,  59  Pac.  549.  97,  35  S.  W.  132. 

See    State    v.    McDannel     (Tenn. 
Ch.  App.),  59  S.  W.  451. 


§  309  Suretyship  and  Guaranty.  318 

visions ;  that  is,  he  gives  a  voluntary  bond.  Such  bonds  are  valid 
obligations,  and  sureties  on  the  same  are  liable  for  defaults  of 
their  principal  in  like  manner  as  if  such  bond  was  required  by 
statute ;  such  bonds  are  a  good  common  law  obligation.""^  It  is 
sufficient  to  make  a  bond  valid  as  a  common  law  obligation,  that 
it  is  voluntarily  given,  and  that  the  office  and  the  duties  assigned 
to  the  officer  and  covered  by  the  bond,  are  duly  authorized  by  law." 
Thus,  a  voluntary  bond  given  by  a  State  treasurer  for  the  faith- 
ful discharge  of  his  duties,  is  valid.*^  The  general  rule  is  that 
a  bond,  whether  required  by  statute  or  not,  is  a  good  common  law 
bond,  if  entered  into  voluntarily  and  for  a  valuable  consideration, 
and  if  not  repugnant  to  the  letter  or  policy  of  the  law.^^ 

And  though  a  bond  may  not  in  all  respects  conform  to  the  statu- 
tory provisions  as  to  such  bonds  in  that  it  omits  some  statutory 
requirement  or  contains  some  clause  not  required  by  law,  it  may 
nevertheless  be  held  binding  on  the  sureties.**  So  a  depositary 
bond  may  be  binding,  though  there  is  not  a  strict  compliance  with 
all  the  minutiae  of  the  statute.  It  is  said  that  when  faith  and 
credit  have  been  given  to  such  a  bond  and  it  has  performed  for  its 
principals  the  function  of  obtaining  money,  property  or  other 
valuable  thing,  it  illy  becomes  its  obligors  to  make  immaterial 
variances  from  statutory  form  an  avoidance  of  liability.*'' 

40.  United  States  v.  Tingey,  5  Pet.  ofRcial  duties,  while  the  statute  re- 
(U.  S.)  115,  8  L.  Ed.  66;  United  quires  one  covering  only  the  single 
States  V.  Bradley,  10  Pet.  (U.  S.)  duty  of  paying  over  moneys.  In 
343,  360,  9  L.  Ed.  448.  such    case    the    surplusage    will    be 

As  to  statutory  bond  and  estoppel  rejected  and  the  bond  sustained  as 

see   §   67b.  to    the    statutory    conditions    which 

41.  United  States  v.  Rogers,  28  it  includes.  Milwaukee  v.  United 
Fed.  607.  States  Fidelity  &  Guaranty  Co.,  144 

42.  Sooy  V.  State,  38  N.  J.  L.  324.  Wis.  603,  129  N.  W.  686. 

43.  Potter  v.  State,  23  Ind.  550;  44.  Laffan  v.  United  States,  122 
Crawford  v.  Howard,  9  Ga.  314;  Fed.  333,  58  C.  C.  A.  495;  Carter  v. 
State  V.  Harvey,  57  Miss.  863;  Peo-  Fidelity  &  Deposit  Co.  of  Maryland, 
pie  V.  Collins,  7  Johns.  (N.  Y.)   554.  134  Ala.   369,   32   So.   632;    Town  of 

A  bond  given  by  a  public  officer  Is  Turnwater  v.  Hardt,  28  "Wash.   684, 

not  deprived  of  its  character  as  an  69  Pac.  378. 

official   statutory  bond  by  the   fact  Compare    Anderson    v.    Brumby, 

that  it  differs  in  verbiage  from  the  115  Ga.  644,  42  S.  E.  77. 

bond  presented  by  statute  or  by  the  45.  Henry  County  v.  Salmon,  201 

further  fact  that  it  covers  all  of  his  Mo.   136,  100  S.  W.  20. 


319 


Bonds  OF  Public  Officees  AND  Agents.     §§  310,311 


§  310.  General  and  Special  Bonds  Given  by  an  Officer, — The 
general  rule  is  that  when  an  officer  is  required  to  perform  a  duty 
which  is  special  in  its  nature,  he  is  required  to  give  a  special  bond, 
though  he  has  already  given  a  general  bond,  and  in  the  absence 
of  any  declaration  that  the  sureties  on  the  general  bond  shall  also 
be  liable,  it  does  not  bind  them  for  the  special  duty/^  Thus,  a 
county  treasurer,  where  his  bond  does  not  cover  money  coming 
into  his  hands  for  sale  of  school  and  university  lands,  is  not  liable 
on  his  bond  for  the  misappropriation  of  such  money,  nor  are  his 
sureties.  To  make  him  liable,  a  special  bond,  covering  such  money, 
should  have  been  given.*^  The  sureties  on  the  officer's  general  bond 
are  not  liable  for  any  delinquency  in  the  performance  of  such  new 
obligation.^* 

But  where  a  special  bond  is  required  and  by  statute  it  is  in  the 
nature  of  a  cumulative  security,  the  sureties  on  the  general  bond 
can  also  be  held.^^ 

§  311.     Sureties  are  Liable  Only  for  Their  Principal's  Official 

Acts. — For  all  defaults  of  the  officer  within  the  limit  of  what  the 
law  authorizes  or  enjoins  upon  him,  as  such  officer,  the  sureties  are 
bound ;  but  they  are  not  bound  for  acts  which  are  not  official,  that 
is,  those  which  are  not  done  in  his  official  capacity.^" 


46.  United  States. — United  States 
V.   Cheeseman,  3   Saw.  424. 

Illinois. — People  v.  Moon,  3  Scam. 
123. 

Kentucky. — Lyman  v.  Conkey,  1 
Met.  317. 

Maine. — Williams  v.  Morton,  38 
Me.  52. 

Michigan. — White  v.  East  Sagi- 
naw, 43  Mich.  567. 

Minnesota. — State  v.  Younge,  23 
Minn.  551. 

Missouri. — State  v.  Johnson,  55 
Mo.  80. 

Nevada. — Henderson  v.  Coover,  4 
Nev.  429. 

North  Carolina. — State  v.  Bate- 
man,  102  N.  C.  52,  18  S.  E.  882. 

Pennsylvania. — Commonwealth  v. 
Toms,  45  Pa.  St.  408. 

Ohio.— State  v.  Corey,  16  Ohio  St. 
17. 


Texas.— Briton  v.  Fort  Worth,  78 
Tex.  227. 

Wisconsin. — Board  of  Supervisors 
of  Milwaukee  Co.  v.  Pabst,  70  Wis. 
352,  35  N.  W.  337;  Milwaukee  Co. 
V.  Ehlers,  45  Wis.  281. 

47.  Morrow  v.  Wood,  56  Ala.  8; 
County  of  Redwood  v.  Tower,  28 
Minn.  45,  8  N.  W.  907. 

48.  Cartly  v.  Allen,  56  Ala.  198; 
Anderson  v.  Thompson,  10  Bush 
(Ky.)  132;  County  Board  v.  Bate- 
man,  102  N.  C.  52,  18  S.  E.  882;  Col- 
umbia County  V.  Massie,  31  Ore.  292„ 
48  Pac.  694. 

49.  Johnson  v.  Babbitt,  81  Miss. 
339,  33  So.  73;  State  v.  McDannel 
(Tenn.  Ch.  App.),  59  S.  W.  451. 

50.  United  States.— People  v.  Hil- 
ton, 36  Fed.  172. 

California. — People  v.  Smith,  12X 
Cal.  70,  55  Pac.  765. 


;§  312,313 


.Suretyship  and  Guaranty. 


320 


In  the  assumption  of  duties  not  belonging  to  his  office,  or  the 
neglect  of  other  officers  in  the  discharge  of  other  duties,  he  cannot 
extend  the  sureties'  liability  beyond  the  terms  of  his  undertaking 
for  which  the  sureties  engaged  to  see  completed. ^^  The  sureties' 
liabilities  cannot  be  enlarged  by  the  acts  of  their  principal.^^ 

§  312.  Subsequently  Imposed  Duties. — Duties  not  yet  exist- 
ing and  not  germane  to  the  office  are  not  within  the  contemplation 
of  the  sureties  on  the  official  bond,  nor  properly  covered  by  their 
obligation ;  hence,  sureties  are  not  liable  for  subsequently  imposed 
duties.^^  Thus,  where  the  principal  gives  a  bond  for  the  faithful 
performance  of  his  duties  as  collector  for  a  certain  number  of 
townships,  and  the  bond  is  afterwards  altered  so  as  to  embrace  an- 
other township  without  the  consent  of  the  sureties,  they  are  dis- 
charged for  money  subsequently  collected  and  embezzled  by  the 
officer." 

§  313.  Subsequently  Imposed  Duties  by  the  Legislature. — 
Sureties  signing  the  bond  of  a  public  officer,  have  within  con- 


Illinois. — Orton  V.  City  of  Lincoln, 
156  111.  499,  41  N.  E.  159. 

Indiana. — State  v.  Flynn,  157  Ind. 
52,  60  N.  E.  684;  Scott  v.  State,  46 
Ind.  203. 

Kansas. — Wilson  v.  State,  67  Kan. 
44,  72  Pac.  517. 

Kentucky. — American  Bonding  & 
Trust  Co.  V.  Blount,  23  Ky.  Law  Rep. 
1632,  65  S.  W.  806. 

Michigan. — Cheboygan  County  v. 
Erratt,  110  Mich.  156,  67  N.  W.  1117. 

Missouri. — Pundman  v.  Schoen- 
lick,  144  Mo.  149,  45  S.  W.  1112. 

Missonri. — State  v.  Bower,  72  Mo. 
387;  State  ex  rel.  Linsay  v.  Harri- 
son, 99  Mo.  App.  57,  72  S.  W.  469. 

Nebraska. — State  v.  Moore,  56  Neb. 
82,  76  N.  W.  474. 

New  York. — People  v.  Lucas,  93  N. 
Y.  585;  Ward  v.  State,  81  N.  Y.  406; 
People  V.  Pennock,  60  N.  Y.  421. 

Ohio. — Webb  v.  Auspach,  3  Ohio 
St.  522. 


Texas. — Heidenheimer  v.  Brent,  59 
Tex.  533. 

England.  —  Leitch  v.  Taylor,  7 
Barn.  &  Cr.  491. 

51.  People  V.  Pennock,  60  N.  Y. 
421;  Supervisors  v.  Bates,  17  N.  Y. 
242. 

52.  People  v.  Toomy,  122  111.  308, 
13  N.  E.  521;  Howard  Co.  v.  Hill,  88 
Md.  111. 

53.  United  States.  —  Gaussen  v. 
United  States,  97  U.  S.  584,  24  L.  Ed. 
1009;  Converse  v.  United  States,  21 
How.  463,  16  L.  Ed.  192. 

Indiana. — Lafayette  v.  James,  92 
Ind.  240. 

Michigan. — White  v.  East  Saginaw, 
43  Mich.  567,  6  N.  W.  86. 

Virginia.  —  Commonwealth  t. 
Holmes,  25  Gratt.  771. 

England. — Graham,  L.  R.  5  C.  P. 
201. 

54.  Miller  v.  Stewart,  9  Wheat.  (U. 
S.)  680,  6  L.  Ed.  189. 


321  Bonds  of  Public  Officers  and  Agents.  §  314 

templation  all  changes  that  may  be  made  by  law  as  to  the  officer's 
duties,  and  are  liable  for  his  defaults  after  such  additional  obliga- 
tions.^^ There  is  a  difference  between  the  contract  of  public  of- 
ficers and  the  State,  and  the  contract  between  individuals.  In  the 
contracts  of  individuals  no  alteration  can  be  made  without  mutual 
consent  of  both  parties.  In  the  case  of  a  public  officer  and  the 
State,  the  legislature  has  power  at  any  and  all  times  to  change 
the  duties  of  officers,  and  the  continued  existence  of  that  power  is 
known  to  the  officer  and  his  sureties,  and  the  officer  accepts  the 
office  and  the  sureties  execute  the  bond  with  this  knowledge ;  the 
power  of  the  legislature  to  change  his  duties  enters  into  and  be- 
-comes  a  part  of  his  contract.^^  Thus,  it  is  said  the  legislative  ex- 
tension of  the  time,  for  paying  over  taxes,  of  three  weeks  does  not 
discharge  the  sureties  on  the  tax  collector's  bond."  So  the  sure- 
ties on  a  sheriff's  bond  are  liable  for  defaults  of  their  principal, 
for  the  performance  of  new  duties  created  after  the  bond  was 
executed.^^  The  only  limitation  to  this  rule  is  that  the  new  duties 
imposed  shall  be  of  the  same  general  nature  and  character  as  the 
existing  duties.^^ 

§  314.     The  State  is  Not  Responsible  for  Its  Officers'  Acts.— 

Xeither  the  neglect  or  failure  of  the  government  to  discharge  some 
duty  to  a  third  party,  nor  its  neglect  or  laches  in  enforcing  a  com- 

55.  Prickett  v.  People,  88  111.  115;       MJssonri.— Mooney  v.  State,  13  Mo. 
Dawson  v.  State,  38  Ohio  St.  1.  7. 

See,   also.  City  &  County  of  San  JVeiv  York.— People  v.  Backus,  117 

Francisco    v.    Mulcrery    (Cal.    App.  N.   Y.   196,  22  N.  E.   769;    People  v. 

1911),  113  Pac.  339.  Vilas,  36  N.  Y.  459. 

As    to    employment    or    condition  England.  —  Compare     Pybus     v. 

changed  by  employer  or  by  the  leg-  Gibbs,  6   El.  &  Bl.   903;    Bartlett  v. 

islature,  see  §  72  herein.  Atty.-Gen.,  Park  277. 

56.  United    States.— United    States  57.  People    v.    McHatton,    2    Gil. 
v.   Kirkpatriek,   9   Wheat.   720,   6   L.  (111.)  732. 

Ed.   199.  See,  also,  Kindle  v.  State,  7  Blackf. 

Iowa.— Mahaska  Co.  v.  Ingalls,  14    (Ind.)  566;  State  v.  Carleton,  1  Gill 

Iowa  170.  (Md.)  249. 

Kentucky. — Colter   v.    Morgan,  12        Compare    King    Co.    v.    Ferry,    5 

B.  Mon.  278.  Wash.  536. 

Massachusetts.  —  Cambridge  v.       58.  Mooney  v.  State,  13  Mo.  7. 

Fifield,  126  Mass.  428.  59.  White  v.  Fox,  22  Me.  341;  Peo- 

Minnesota.— County    of    Scott  v.    pie  v.  Vilas,  36  N.  Y.  459. 
Tling,  29  Minn.  398,  13  N.  W.  398. 

21 


§    315  SUKETYSHIP  AND  GUARANTY.  322 

pliance  with  the  bond's  conditions,  will  release  the  sureties  from 
their  obligation.'*  Any  neglect  of  a  public  oiHcer  gives  his  sure- 
ties no  riglits  against  the  State  and  affords  them  no  excuse  for  not 
performing  their  obligation  according  to  its  terms.^^  The  State 
is  not  responsible  for  acts  of  its  officers,  and  the  officer's  sureties 
enter  upon  their  contract  with  full  knowledge  of  this  principle  of 
law/^  Thus,  the  failure  of  the  governing  body  to  compel  a  county 
treasurer  to  make  prompt  settlement,  and  his  default  does  not 
discharge  his  sureties  f^  for  such  governing  body  is  not  responsible 
for  the  wrongful  acts  of  its  officer.'^'*  So  the  sureties  on  the  officer's 
bond  cannot  successfully  plead  the  neglect  or  failure  of  the  State 
to  require  their  principal  to  render  an  account  or  remove  him  for 
neglect  of  duty  required  of  such  officer  by  law,  as  a  defense  to  their 
liability  upon  a  subsequent  breach  of  the  bond.''''  Thus,  the  de- 
fault of  a  county  treasurer  is  not  excused  by  the  neglect  of  the 
county  board,  and  it  cannot  be  interposed  as  a  defense  by  his 
sureties.*® 

§  315.  Forgery  of  Prior  Surety's  Name. — The  fact  that  the 
name  of  one  of  the  sureties  to  an  officer's  bond  has  been  forged, 

60.  United  States  v.  Witten,  143  Texas.— Britton  v.  City  of  Fort 
U.  S.  76,  12  Sup.  Ct.  372,  36  L.  Ed.    Worth,  78  Tex.  227,  14  S.  W.  585. 

81;   Hart  v.  United  States,  95  U.  S.  Wisconsin.— Kewaunee  v.  Kniper, 

316,  24  L.  Ed.  479;  Mintern  v.  United  37  Wis.  490. 

States,  106  U.  S.  437,  1  Sup.  Ct.  402,  63.  Crawn    v.    Commonwealth,    84 

27  L.  Ed.  208.  Va.  282,  4  S.  E.  721. 

61.  Hart  v.  United  States,  95  U.  S.  64.  Gibson  v.  United  States,  8 
316,  24  L.  Ed.  479;  Mintern  V.  United  Wall.  (U.  S.)  269,  19  L.  Ed.  453; 
States,  106  U.  S.  437,  1  Sup.  Ct.  402,  Jones  v.  United  States,  18  Wall.  (U. 
27  L.  Ed.  208;  Pond  V.  United  States,  S.)  662,  21  L.  Ed.  867;  Manly  v. 
Ill  Fed.  989,  49  C.  C.  A.  582.  Atchison,  9  Kan.  358;  People  v.  Rus- 

62.  United  States.— Hart  v.  United  sell,  4  Wend.  (N.  Y.)  570;  Looney  v. 
States,  95  U.  S.  316;  Pond  v.  United  Hughes,  26  N.  Y.  514;  Common- 
States,  111  Fed.  989,  49  C.  C.  A.  582.  wealth    v.    Wolbert,    6    Binn.     (Pa.) 

Illinois.— Stern  v.  People,  102  111.  292. 

540.  65.  United    States    v.    Kirkpatrick, 

Iowa.— Boone    Co.     v.     Jones,     54  9  Wheat.   (U.  S.)   720,  6  L.  Ed.  199; 

Iowa  699,  2  N.  W.  987,  7  N.  W.  155.  United  States  v.  Vanzandt,  11  Wheat. 

Minnesota.— County  of  Waseca  v.  (U.    S.)    184,   6   L.   Ed.   448;    United 

Sheehan  (Board  of  County  Cora'rs  v.  States  v.  Boyd,  15  Pet.   (U.  S.)    187, 

Sheehan),    42    Minn.    57,    43    N.    W.  10  L.  Ed.  706. 

690;    Boardman  Tower  v.  Flagg,  70  66.  Coons   v.    People,   76    III.   391; 

Minn.  338.  Cawley  v.  People,  95  111.  249. 


323  BoM)s  OF  Public  Officers  and  Agejsts.  §  316 

unknown  to  the  obligee  when  the  bond  was  accepted,  will  not  dis- 
charge the  surety  who  subsequently  executes  the  bond  in  ignorance 
of  such  forgery.*'^  And  the  fact  that  the  surety  whose  name  was 
forged  gives  him  no  information  of  the  fact,  where  the  condition 
upon  which  the  surety  signs  is  unknown  to  the  obligee  or  officer 
to  whom  the  bond  is  given  at  the  time  he  accepts  it  does  not  dis- 
charge him.^^ 

And  if  the  forged  name  is  erased  or  obliterated  before  delivery 
of  the  bond,  the  rights  of  the  obligors  therein  will  not  be  altered 
or  their  liability  affected  thereby,  and,  of  course,  the  surety  is. 
liable.^^  Because  the  surety  would  have  been  liable  had  the  eras- 
ure not  been  made.  The  obliterating  the  forged  name  in  no  re- 
spect altered  the  rights  or  affected  his  liability.  Where  one  of 
two  innocent  parties  must  be  the  loser  by  the  deceit  or  fraud  o£ 
another,  the  loss  must  fall  on  him  who  employs  and  puts  trust 
and  confidence  in  the  deceiver,  and  not  on  the  other.^'' 

§  316.  Money  Lost  or  Stolen  From  Principal. — The  general 
rule  is  that  money  lost  or  stolen  from  the  principal  is  no  excep- 
tion to  the  rule  that  binds  the  surety ;  so  for  such  money  the  sure- 
ties are  liable.^^  Thus,  the  loss  of  public  moneys  by  a  receiver 
and  disburser  of  it,  feloniously  taken  from  him  without  fault  on 
his  part,  does  not  discharge  him  or  his  sureties  from  the  obliga- 
tion on  his  bond  ;^^  the  same  rule  applies,  though  the  receiver  has 
been  robbed,^^  or  murdered.^* 

67.  Stern   v.   People,   102   111.   340.    16  Wall.  (U.  S.)  1;  Selser  v.  Brooks, 
In  Seely  v.  People,  27  111.  173,  It    3  Ohio  St.  302. 

was  held  where  a  party  executes  a  69.  Stoner  v.  Milliken,  85  111.  218; 

bond  as  surety  with  another  whose  Fork  Ins.  Co.  v.  Brooks,  51  ZAe.  506. 

name  has  been  forged,  he  will  not  70,  Stoner  v.  Milliken,  85  111.  218; 

be  liable;   but  in  Stoner  v.  Millikin,  Hern  v.  Nichols,  1  Salk.  289. 

85   111.   218,  that   case  is   overruled.  71.  United    States    v.    Prescott,    3 

And  the  case  of  People  V.  Oregon,  27  How.    (U.    S.)    578,    11    L.    Ed.    734; 

111.  29,  in  so  far  as  it  makes  distinc-  United   States    v.    Morgan,    11    How. 

tion  in  this  regard  between  commer-  (U.  S.)  154,  160,  13  L.  Ed.  643. 

cial    paper    and  other   instruments,  72.  United    States    v.    Dashiel,    4 

is  overruled  in  Chicago  v.  Gage,  95  Wall.   (U.  S.)   182,  18  L.  Ed.  319. 

111.  593.  73.  Boyden    v.    United    States,    13 

68.  State   v.   Pepper,   31    Ind.    76;  Wall.  (U.  S.)  17,  18  L.  Ed.  319. 
State  V.  Baker,  64  Mo.  167.  74.  United  States  v.   Watts,   1  N. 

See,   also,   Dair  v.   United  Statesi,    M.  553, 


§  316  Suretyship  and  Guaranty.  324 

The  loss  of  money  bj  theft  or  otherwise,  by  a  public  officer,  is 
no  excuse  for  non-performance  of  his  obligation,  and  his  sureties 
are  liable  for  such  in  paying  over  the  money/'' 

The  condition  of  the  bond  is  to  keep  safely  the  public  money, 
and  such  contract  is  absolutely  without  any  condition,  expressed 
or  implied,  and  nothing  but  the  payment  of  all  the  money  when 
required  can  discharge  the  bond.  The  responsibility  of  the  of- 
ficer is  not  determined  by  the  law  of  bailment,  but  by  the  condi- 
tion of  his  bond,  which  jDrovides  that  the  officer  will  account  for 
and  pay  over  the  moneys  to  be  received.  Hence,  if  the  money 
is  lost  or  stolen,  the  principal  and  his  sureties  are  liable.^® 

This  general  rule  is  denied  in  several  cases.  Thus,  in  Maine 
it  is  held  that  if,  without  fault  or  negligence  on  the  part  of  the 
officer,  he  is  violently  robbed  of  money  belonging  to  the  State  or 
county,  neither  he  nor  his  sureties  are  liable  for  the  money  taken.^ 
And  so  in  Alabama,  if  a  tax  collector,  without  negligence  on  his 
part,  is  robbed  of  the  public  moneys  by  irresistible  force,  which 
he  could  not  have  foreseen  or  guarded  against,  he  is  not  liable  for 
such  moneys  feloniously  taken  from  him.'^^ 

75.  Illinois. — Thompson  v.    Broad,  Nevada. — State  v.  Nevin,  19  Neb. 

.^0  111.  99.  162,  7  Pac.  650. 

Indiana. — Rock  v.  Stringer,  36  Ind.  Ohio. — State  v.  Harper,  6  Ohio  St. 

;346.  607. 

Iowa. — Union   Town   v.   Smith,  39  Pennsylyania. — German  Am.  Bank 

Iowa  9;   Taylor  Town  v.  Morter,  37  v.  Auth,  87  Pa.  St.  419. 

Iowa  550.  Texas.— Boggs  v.  State,  40  Tex.  10. 

Louisiana. — State  v.  Lanier,  31  La.  76.  United    States. — United   States 

Ann.  423.  v.  Thomas,  15  Wall.  337,  21  L.  Ed. 

Maine. — Monticello    v.    Lowell,    70  89. 

I\Ie.  437.  Indiana,— Ingles  v.  State,  61  Ind. 

Massachusetts. — Hancock  v.   Haz-  212. 

zard,  12  Cush.  112.  New  York.- Muzzy  v.  Shattuck,  1 

Minnesota. — Board  of  Education  of  Denio  233. 

the  Villrge  of  Pine  Island  v.  Jewell,  Ohio. — State  v.  Harper,  6  Ohio  St. 

44  ]\Iinn.  427,  46  N.  W.  914.  607. 

Mission. — State  v.   Moore,   74   Mo.  Pennsylvania. — Commonwealth    v. 

413.  Conly,  3  Pa.  St.  372. 

Nebraska. — Ward  v.   School   Dist.  77.  Cumberland  v.  Pennell,  69  Me. 

No.  15,  10  Neb.  293,  4  N.  W.  1001.  35. 

New    Jersey. — Providence    v.    I\Ic-  78.  State  v.  Houston,  78  Ala.  361. 

Cachron,  35  N.  J.  L.  328,  affirming  33  See,  also,  United  States  v.  Adams, 

N.  J.  L.  339.  24  Fed.  348;  Ross  v.  Hatch,  5  Iowa 


325  Bonds  of  Public  Officers  and  Agents.  §  317 

And  a  similar  rule  prevails  where  money  or  funds  are  destroyed 
by  fire  while  in  the  custody  of  an  official  whose  bond  is  conditioned 
for  the  safe  keeping  thereof.    In  such  cases  the  sureties  are  liable.^* 


§  317.  Depositing  Public  Money  in  Bank. — When  a  public 
officer  deposits  the  money  received  in  a  bank,  he  becomes  a  credi- 
tor and  the  bank  a  debtor,  the  same  as  if  it  was  his  own  money. 
His  office  gives  him  no  right  to  thus  deposit  the  money.  So  where 
a  public  officer  deposits  money  in  a  bank  without  authority  of  law, 
and  the  bank  thereafter  fails  and  the  money  is  lost,  the  officer  and 
his  sureties  are  liable  for  the  same.^**  And  the  fact  that  the  county 
does  not  provide  a  safe  or  suitable  place  where  the  money  of  the 
officer  may  be  kept,  will  not  release  him  from  liability  if  he  de- 
posits it  in  bank  when,  by  reason  of  the  failure  of  the  bank,  it  is 
lost.^^ 

In  such  case  the  bank  is  the  agent  of  the  officer,  and  not  of  the 
State  or  county,  and  failure  of  the  bank  and  loss  of  money  make 
the  officer  and  his  sureties  liable.*^ 

And  the  fact  that  the  officer  used  reasonable  caution  in  his  selec- 


149;   Albany  Co.  v.  Dorr,  25  Wend.  Nebraska.  —  Thomssen     v.     Hall 

(N.  Y.)   446;   HougMon  v.  Freeland,  County,  63  Neb.  777,  89  N.  W.  389. 

26  Grant  Ch.  500.  North  Carolina. — Smith  v.  Palton, 

79.  Smythe  v.   United   States,    188  131  N.  C.  396,  42  S.  E.  849. 

U.  S.  156,  23  Sup.  Ct.  279,  47  L.  Ed.  Wisconsin. — Supervisors  v.  Kaine, 

425,  affirming  107  Fed.  376,  46  C.  C.  39  Wis.  468. 

A  354,  holding  there  could  be  a  re-  Such   a  deposit  is   a  conversion. 

covery  on  the  bond  of  the  superin-  Montgomery  County  v.  Cochran,  121 

tendent  of  the  mint  at  New  Orleans  Fed.  17,  57  C.  C.  A.  261. 

of  the  face  value  of  treasury  notes  81.  Lowry  v.  Polk  County,  51  Iowa 

destroyed  by  fire  while  in  his  cus-  50,  49  N.  W.  1049. 

tody.  82.  Kansas. — IMyers    v.    Board    of 

80.  United  States.  —  Montgomery  Com'rs   of   Kiowa   County,   60   Kan. 
County  V.  Cochran,  121  Fed.   17,  57  189,  56  Pac.  11. 

C.  C.  A.  261.  Nebraska. — Ward   v.   School   Dist. 

Alabama.— Mitchell    v.    Rice,    132  No.  15,  10  Neb.  293,  4  N.  W.  1001. 

Ala.  120,  31  So.  498.  North    Carolina.— Haven    v.    La- 
Illinois.  —  Swift    v.    Trustees    of  thene,  75  L.  C.  505. 

Schools,  189  111.  584,  60  N.  E.  44,  af-  Pennsylvania.  —  Hart     v.      Poor 

firming  91  111.  App.  221.  Guardians,  8iy2   Pa.  St.  466. 

Missouri.- State  v.  Moore,  74  IMo.  Texas.— Wilson  v.  Wichita  Co.,  67 

413;   State  v.  Powell,  67  Mo.  395.  Tex.  647,  4  S.  W.  67. 


§  318 


SUEETYSHIP  AND  GUARANTY. 


326 


tion  of  the  bank  and  the  depositing  of  the  funds  there  is  held  to  b© 
no  defense.^^ 

In  one  or  two  States  this  rule  has  been  changed.  Thus,  in  South 
Carolina  such  public  officer  is  not  liable  for  the  loss  of  public 
funds  occasioned  by  the  failure  of  a  bank  which  was  in  good  stand- 
ing at  the  time  the  money  was  placed  on  deposit  by  him,"  thus 
adopting  the  rule  applicable  to  the  agent  of  a  corporation.^^  And 
in  Wyoming,  the  sureties  are  not  liable  for  moneys  of  a  public 
treasurer  deposited  in  a  bank  which  failed,  where  the  treasurer  is 
without  fault.^^ 


§  318.     Making  Profits  on  Public  Funds. — An  officer  has  no 

right  to  make  profits  on  public  funds.  So  where  he  receives  in- 
terest for  the  loan  or  use  of  such  funds,  such  interest  will  not  be- 
long to  him."  So  where  an  officer  deposits  the  funds  in  a  bank 
and  draws  interest  on  them,  he  and  his  sureties  are  liable  for  the 
interest  so  received  by  him  from  the  bank.^^  And  so  where  a  city 
treasurer  loans  money  to  the  city  under  direction  of  the  council, 
the  sureties  on  his  bond  are  liable  for  the  interest  collected  for 
which  he  fails  to  account.*^ 


83.  Swift  V.  Trustees  of  Schools, 
189  111.  584,  60  N.  E.  44,  affirming  91 
111.  App.  221. 

84.  York  Co.  v.  Watson,  15  S.  C.  1. 

85.  Chicago,  B.  &  Q.  R.  Co.  v.  Bart- 
lett,  120  111.  603,  11  N.  E.  867. 

86.  Roberts  v.  Board  of  Com'rs 
of  Laramie  County,  8  Wyo.  177,  56 
Pac.  915. 

87.  Cassady  v.  Trustees,  105  111. 
561;  Lewis  v.  Dwight,  10  Conn.  95; 
Chicago  V.  Gage,  95  111.  593;  Rich- 
mond Co.  V.  Wandell,  6  Lans.  (N. 
Y.)  33. 

A  county  treasurer  who  receiver, 
money  or  anything  of  value  in  con- 
sideration for  the  use  of  the  county 
funds  is  liable  upon  his  bond  for 
that  profit,  and  in  an  action  upon 
his  bond  it  is  decided  in  Nebraska 
that  a  petition   states   facts  suffici- 


ent to  constitute  a  cause  of  action 
if  the  pleading,  considered  as  a 
whole,  in  substance  charges  that 
subsequent  to  the  enactment  of 
chapter  50,  laws  1891,  the  treasurer 
received  interest  upon  county  funds 
deposited  by  him  in  various  banks, 
and  did  not  account  therefor.  Fur- 
nas County  v.  Evans,  90  Neb.  37, 
132  N.  W.  723. 

That  surety  cannot  speculate  to 
injury  of  co-surety,  see  §  198  herein. 

88.  Wheeling  v.  Black,  25  W.  Va. 
266 ;  Perry  v.  Horn,  22  W.  Va.  381. 

89.  United  States  v.  Broadhead, 
127  U.  S.  212,  8  Sup.  Ct.  1191,  32 
L.  Ed.  147;  Hunt  v.  State  ex  rel. 
City  of  Anderson,  124  Ind.  306. 

Compare  Renfroe  v.  Colquitt,  74 
Ga.  618;  State  v.  Blakemore,  7  Heisk. 
(Tenn.)  638. 


327  Bonds  of  Public  Officers  and  Agents.     §§  319,  320 

An  agreement  bj  a  public  officer  to  deposit  money  in  a  bank 
represented  bj  his  sureties,  upon  which  interest  is  to  be  allowed 
him  personally,  is  against  public  policy  and  illegal,  especially 
when  in  violation  of  a  statute.^** 

An  illegal  agreement  by  a  public  officer  to  receive  interest  on 
public  funds  deposited  in  a  bank  represented  by  his  sureties,  may 
be  tacit  as  well  as  express,  and  its  existence  may  be  established 
by  proof  of  facts  and  circumstances  showing  coincidences  which 
can  be  accounted  for  upon  no  other  assumption  than  that  such  an 
original  understanding  existed.®^ 

§  319.  Interest  Recovered  After  Breach. — Until  there  is  a 
breach  of  the  condition  of  the  bond  which  renders  the  principal 
and  his  sureties  liable,  there  can  be  no  right  to  interest  on  the 
account  of  such  breach.  And  the  earliest  moment  at  which  any 
one  becomes  liable  on  account  of  the  breach,  is  the  time  of  de- 
mand for  the  amount  due  or  the  beginning  of  a  suit  to  recover 
the  amount  which  is  a  sufficient  demand  f'  or  at  the  time  when, 
by  implication  of  law  or  by  express  terms  in  the  bond,  it  is  the 
duty  of  the  officer  to  pay  over  the  money  to  the  owner  without 
previous  demand  on  his  part,^^  or  by  statute  at  the  time  when  he 
received  such  money.^* 

§  320.  Liability  of  Sureties  as  to  Payment  of  Penalties. — 
Penalties  are  never  extended  by  implication,  nor  are  sureties  held 
beyond  what  is  clearly  within  the  scope  and  purpose  of  their  un- 
dertaking. And  where  a  statute  provides  for  a  penalty  to  be  in- 
curred for  breach  of  the  bond,  and  does  not  by  express  terms  nor 

90.  Ramsay  v.  Whitbeck,  183  111.  Kansas.— Benchfield  v.  Haffey,  34 
550,  56  N.  E.  322,  Kan.  42. 

91.  Ramsay  v.  Whitbeck,  183  111.  Massachusetts.  —  Leighton  v. 
550,  56  N.  E.  322.  Brown,  98  Mass.  515;   Dodge  v.  Per- 

92.  United  States  v.  Curtis,  100  U.  kins,  9  Pick.  (Mass.)  368;  Bank  v. 
S.  119,  25  L.  Ed.  571;  United  States  Smith,  12  Allen  (Mass.)  293. 

V.  Poulson,  30  Fed.  231.  >"ebraska.  —  Thomssen     v.     Hall 

As  to  when  surety  is  liable  for  in-  County,  63  Neb.  777,  89  N.  W.  389. 

terest,  see  §§  74,  76,  herein.  94.  Smythe   v.   United   States,    188 

93.  United  States.— United  States  U.  S.  156,  23  Sup.  Ct.  279,  47  L.  Ed. 
V.  Arnold,  1  Gall.  348.  425,  affirming  107  Fed.  376,  46  C.  C. 

GeorjrJa. — Frink   v.    Southern   Ex-   A.  354. 
press  Co.,  82  Ga.  33,  8  S.  E.  862. 


§  321  Suretyship  and  Guaranty.  328 

hy  implication  make  the  sureties  liable  for  it,  they  are  not  re- 
sponsible for  such  penalty.^'' 

An  officer  and  his  sureties  are  not  liable  upon  his  bond  for  per- 
formance of  duties  not  therein  set  forth,  but  he  is  liable  personally 
for  the  non-performance  of  his  duty  prescribed  by  statute  to  the 
party  injured  to  the  extent  of  the  damage  received.®''  Thus,  the 
sureties  on  a  county  clerk's  bond  are  not  liable  for  his  acts  in 
issuing  a  license  to  marry  to  a  minor  in  violation  of  law.®^  The 
statute  may  provide  for  the  collection  of  the  penalty  from  the 
principal  and  his  sureties,  in  which  case  the  sureties  are  liable 
for  the  breach,  including  the  penalty.^^ 

§  321.  Estoppel  by  Judgment. — A  judgment  is  conclusive  of 
what  it  necessarily  decides  only.  AVhen  introduced  in  evidence 
as  an  estoppel  it  cannot  be  explained  or  varied  by  parol  evidence.®* 
So  a  judgment  fairly  obtained  against  one  for  whom  another  has 
given  an  indemnity,  is  evidence,  and  conclusive  in  a  suit  on  the^ 
indemnity.^  But  in  a  suit  on  an  indemnity  bond  it  must  be  shown 
that  the  defendant  gave  the  indemnity,  that  the  judgment  was- 
fairly  obtained,  and  that  it  was  rendered  for  a  matter  to  which 
the  indemnity  applied.  If  this  is  not  shown,  the  judgment  is 
not  conclusive.^  The  general  doctrine  that  the  judgment  against 
the  jirincipal  is  conclusive  against  the  surety  is  founded  on  special 
statutes  or  a  peculiar  form  of  the  bond.^  Thus,  where  the  sureties 
by  express  terms  of  their  agreement  or  by  reasonable  implication 

95.  Brooks  v.  Governor,  17  Ala.  As  to  effect  of  judgment,  see  §  65 
806;  Caspen  v.  People,  6  111.  App.  28;    herein. 

State  V.  Baker,  47  Miss.  88;  Moretz  V.        1.  Clark  v.   Carrington,   7   Cranck 

Ray,  75  N.  C.  170.  (U.  S.)  308,  3  L.  Ed.  354;  Drummond 

Compare  Wood  v.  Farvell,  50  Ala.  v.  Preston,  12  Wheat.  (U.  S.)   515,  6 

546;   State  v.  McDanniel   (Tenn.  Ch.  L.  Ed.  712;    Graham  v.  State    (Ark. 

App.),  59  S.  W.  451;  Wilson  v.  State,  1911),  140  S.  W.  735;  Levick  v.  Nor- 

1  Lea  316.  ton,  51  Conn.  461. 

96.  Holt  V.  McLean,  75  N.  C.  347.  2.  Town  of  New  Haven  v.  Chidsey„ 

97.  Brooks    v.    Governor,    17    Ala.  68  Conn.  397,  36  Atl.  800. 

806.  3.  Dane    v.   Gilmer,    51    Me.    547; 

98.  Tappan  v.  People,  67  111.  339.  Commonwealth   v.   Barrows,   46   Me, 

99.  Kilson  v.  Farwell,  132  111.  337,  497;  Dennie  v.  Smith,  129  Mass.  143; 
23  N.  E.  1024;  Eaton  v.  Harth,  45  111.  Tracy  v.  Goodwin,  5  Allen  402;  Tat© 
App.  355;  Ingersoll  v.  Seatoft,  102  v.  James,  50  Vt.  124;  Chamberlain  v. 
Wis.  476,  78  N.  W.  576.  Godfrey,  36  Vt.  380. 


329  Bonds  of  Public  Officeks  and  Agents.  §  o2ia 

from  the  very  nature  and  intent  of  their  obligation  have  stipulated 
to  pay  damages  and  costs  which  may  be  recovered  against  their 
principal,  or  otherwise  to  abide  the  decree  or  judgment  of  a  court 
against  the  principal,  then  they  are  bound  by  the  judgment,  though 
they  have  no  notice  of  the  suit.* 

Although  there  is  a  conflict  of  authority  on  this  subject,  estop- 
pel of  sureties  by  judgment  against  their  principal,  it  seems  to  be 
the  better  opinion  that,  except  in  cases  where,  upon  a  fair  construc- 
tion of  the  contract,  the  surety  may  have  undertaken  to  be  re- 
sponsible for  the  result  of  a  suit,  or  where  he  is  made  privy  to  the 
suit  by  notice,  and  an  opporunity  is  given  to  him  to  defend  it,  a 
judgment  against  the  principal  alone  is,  as  a  general  rule,  evi- 
dence of  the  fact  of  its  recovery  only,  and  not  evidence  of  any  facts 
for  which  it  was  necessary  to  find,  in  order  to  recover  such  judg- 
ment.^ 

Of  course  one  may  agree  to  stand  in  the  place  of  another,  and 
to  be  so  fully  answerable  for  his  debt  or  unlawful  act  as  that  a 
judgment  against  the  latter  shall  conclude  the  former  as  to  the 
amount  of  such  debt  or  damage.^ 

§  321a.  Construing  Bond  With  Reference  to  Statute. — A  bond 
of  a  public  official  is  to  be  construed  with  reference  to  the  statutes 
which  may  be  in  force  and  control  as  to  the  duties  of  the  particular 
office  in  connection  with  which  it  is  given  and  as  to  the  bonds  for 
the  performance  of  such  duties.  So  in  construing  a  county  deposi- 
tary's bond  it  has  been  declared  in  Missouri  that  to  get  at  the  scope 
of  the  bond  the  statutes  pertaining  to  the  subject  matter  of  county 
depositaries  must  be  read  into  the  bond  and  the  obligors  must  be 

4.  Chamberlain  v.  Godfrey,  36  Vt.  Kansas. — Graves  v.  Eulkeley,  25 
380.  Kan.    249;    Fay    v.    Edministon,    25 

5.  Alabama. — Lucas    v.    Grovernor,    Kan.  439. 

6  Ala.  826.  Louisiana.  —  Whitehead  v.  Wool- 
Arkansas. — State  V.     Martin,     20    folk,  3  La.  Ann.  43. 

Ark.  629.  New  Jersey. — DeGreiff  v.  Wilson, 

California.— Pico  v.    Webster,    14    30  N.  J.  Eq.  435. 

Cal.  202.  Pennsylvania. — Gillinan  v.  Strong, 

Georgia.— Taylor  v.    Johnson,    17    64  Pa.  St.  242. 

Ga.  521.  See  in  this  connection  §  65  herein. 

Indiana. — Shelby  v.    Governor,    2       6.  Levlck  v.  Norton,  51  Conn.  461. 

Blackf.  289. 


f§  322,32.3 


Suretyship  and  Guaranty. 


330 


held  to  contract  with  a  view  to  those  statutes.  This  does  not  strike 
down  the  rule  that  sureties  are  entitled  to  stand  upon  the  terms 
of  the  bond,  construed  strictisshni  juris,  but  is  said  to  put  the 
matter  on  a  common  sense  footing  by  reading  the  written  law  into 
the  bond,  discerning  the  objects  to  be  subserved  by  such  bond  and 
getting  at  its  true  intent  and  meaning  by  applying  its  terms  to 
the  objects  sought.^ 

§  322.  Sheriffs  and  Constables. — The  liability  of  sheriffs  and 
constables  for  their  defaults  is  fixed  by  the  terms  of  the  bond  and 
the  statute  in  force  at  the  time  of  the  execution  and  delivery  of  the 
bond.^  But  the  sureties  are  not  liable  for  acts  of  the  officer  be- 
fore the  time  when  the  bond  took  effect.* 


§  323.     Scope  of  Liability. — Constables  and  sheriffs  are  liable 
for  defaults  committed  under  color  or  by  virtue  of  their  office.^" 


7.  Henry  County  v.  Salmon,  201 
Mo.  136,  100  S.  W.  20. 

8.  Freudenstein  v.  McNier,  81  111. 
208. 

Pleading  held  Insufficient  in  ac- 
tion against  sheriff  and  his  bonds- 
men. Kindell-Clark  Drug  Co.  v. 
Myers  (Tex.  Civ.  App.  1911),  140  S. 
W.  463. 

9.  Bryan  v.  Kelly,  85  Ala.  569,  5 
So.  346. 

10.  Jewell  V.  Mills,  3  Bush  (Ky.) 
62;  Lowell  v.  Parker,  10  Met. 
(Mass.)  309. 

Compare  Clancy  v.  Kenworthy,  74 
Iowa  740,  35  N.  W.  427. 

"To  constitute  color  of  office, 
such  as  will  render  an  officer's  sure- 
ties liable  for  his  wrongful  acts, 
something  else  must  be  shown  be- 
sides the  fact  that  in  doing  the  act 
complained  of  the  officer  claimed  to 
be  acting  in  his  official  capacity.  If 
he  is  armed  with  no  writ,  or  if  the 
writ  under  which  he  acts  is  utterly 
void,  and  if  there  is  at  the  time  no 
statute  which  authorizes  the  act  to 


be  done  without  process,  then  there 
is  no  such  color  of  office  as  will  en- 
able him  to  impose  a  liability  upon 
the  sureties  in  his  official  bond." 
Chandler  v.  Rutherford,  101  Fed. 
774,  43  C.  C.  A.  218.  Per  Taylor,  J., 
quoted  in  Inman  v.  Sherrill,  29  Okla. 
100,  116  Pac.  426. 

See,  also,  as  to  scope  of  liability 
the  sections  following,  and  as  to  par- 
ticular illustrations,  §§  325,  326, 
herein. 

Expense  of  advertising  notice  of 
sale  of  property;  not  liable  for. 
Gould  v.  State,  2  Penn.  (Del.)  548,  49 
Atl.  170. 

Liability  for  the  county  levy  col- 
lected.  Whaley  v.  Commonwealth, 
110  Ky.  154,  61  S.  W.  35,  holding 
liable;  Commonwealth  v.  Moren,  25 
Ky.  Law  Rep.  1635,  78  S.  W.  432, 
holding  not  liable;  Commonwealth  v. 
Stone,  24  Ky.  Law  Rep.  1297,  71  S. 
W.  428,  holding  not  liable  for  excess 
of  tax  collected. 

Liable  for  unlawful  levy  of  dis- 
tress warrants  for  delinquent  taxes. 


531 


Bonds  of  Public  Officers  and  Agents. 


§  323 


But  their  sureties  are  not  liable  for  acts  of  the  officer  which  are 
not  a  part  of  his  official  duties/^ 

A  sheriff  does  not  act  officially  in  sending  photographs  of  an 
licensed  person,  with  description  of  such  person,  to  various  indi- 
viduals and  police  departments," whereby  the  accused  is  held  out 
to  the  world  as  a  criminal ;  hence  the  sheriff  and  his  sureties  are 
not  liable  on  his  official  bond  for  such  acts,  though  the  officer  may 


Chamberlain  Banking  House  v. 
Woolsey,  60  Neb.  516,  83  N.  W.  729. 

See  State  v.  Barnes,  52  W.  Va.  85, 
43  S.  E.  131,  as  to  when  not  liable  as 
to  delinquent  taxes. 

Failure  to  pay  county  claims  out 
of  taxes.  Commonwealth  v.  Moren, 
25  Ky.  Law  Rep.  1635,  78  S.  W.  432; 
Baker  v.  Fidelity  &  Deposit  Co.  of 
Maryland,  24  Ky.  Law  Rep.  2196,  73 
S.  W.  1025. 

United  States  marshall  may  be 
liable  for  false  arrest  and  imprison- 
ment. See  Bailey  v.  Warner,  118 
Fed.  395,  55  C.  C.  A.  329. 

On  the  bond  of  deimty  sheriff  to 
save  sheriff  harmless  as  to  levying 
on  property,  there  may  be  recovery 
for  unnecessary  appointment  of 
keeper  for  property  levied  on.  Gor- 
man V.  Finn,  56  App.  Div.  (N.  Y.) 
155,  67  N.  Y.  Supp.  546,  affirmed  171 
N.  Y.  628,  63  N.  B.  1117. 

Sureties  on  the  official  bond  of  a 
nonstable  are  only  answerable  for 
the  acts  of  their  principal  while  en- 
gaged in  the  performance  of  some 
duty  imposed  upon  him  by  law  or 
for  an  omission  to  per^'orm  some 
such  duty.  Inman  v.  Sherrill,  29 
Okla.  100,  116   Pac.   426. 

Killing  bystander  in  making  ar- 
rest where  a  marshal  acting  in  his 
official  capacity  in  making  an  ar- 
rest, unlawfully  shot  and  killed  a 
bystander,  whom  he  suspected  of  an 
intent  to  interfere  with  the  arrest, 
when  not  necessary  or  apparently 


necessary  to  save  himself  from 
death  or  great  bodily  harm,  the  of- 
ficer and  the  sureties  on  his  bond 
were  held  liable  to  the  infant  chil- 
dren of  deceased.  Martin  v.  Smith, 
136  Ky.  804,  125  S.  W.  249. 

A  deputy  sheriff  who  falsely 
claiming  to  have  a  warrant  for  the 
arrest  of  a  person  not  formally 
charged  with  crime  of  any  kind 
goes  to  his  house  in  the  night  time 
and  under  guise  of  the  authority  of 
his  office,  arrests  and  takes  such 
person  into  custody,  has  committed 
an  unauthorized  and  unlawful  act 
under  color  of  his  office,  for  which 
the  sureties  upon  his  official  bond 
are  liable  in  a  proper  action.  Lee 
V.  Charmley,  20  N.  D.  570,  129  N.  W. 
448. 

Though  sureties  may  justify  in 
different  amounts  in  such  a  bond, 
they  will  nevertheless  be  held 
equally  liable  where  there  is  a  statu- 
tory requirement  to  that  effect. 
Board  of  Commissioners  of  David- 
son Co.  V.  Dorsett,  151  N.  E.  307,  66 
S.  E.  132. 

11.  People  for  Use  of  Macon 
County  V.  Foster,  133  111.  496,  23  N. 
E.  615;  State  ex  rel.  Burman  v. 
Dresher,  101  Mo.  App.  636,  74  S.  W. 
153. 

See,  also.  People  v.  Pacific  Surety 
Co.   (Colo.  1910),  109  Pac.  961. 

Executing  process  not  authorized 
to  execute;  sureties  not  liable.  State 
V.  Hendricks,  88  Mo.  App.  560. 


§  '324  Suretyship  and  Guarany.  332^ 

be  subject  to  a  libel  suit.  If  a  sheriff  deems  it  necessary  to  prevent 
the  escape  of  an  accused  person,  he  may  take  the  prisoner's  pho- 
tograph, and  ascertain  his  height,  weight  and  other  physical  pecu- 
liarities, and  his  name,  residence,  place  of  birth,  and  the  like, 
without  incurring  liability  on  his  official  bond  therefor,  his  acts 
being  without  personal  violence  to  the  prisoner. ^^ 

It  is  the  duty  of  the  officer  to  search  the  prisoner,  and  take 
from  him  all  money  or  other  articles  that  may  be  used,  as  evidence 
against  him  at  the  trial.^^  The  officer  may  also  take  from  the 
prisoner  any  dangerous  weapons,  or  anything  else  that  the  official 
may,  in  his  discretion,  deem  necessary  to  his  own  or  the  public 
safety,  or  for  the  safe-keeping  of  the  prisoner,  and  to  prevent  his 
escape ;  and  such  property,  whether  goods  or  money,  is  held  sub- 
ject to  the  order  of  the  court.^*  And  the  officer  may  not  only  take 
any  deadly  weapon  he  may  find  on  the  prisoner,  but  also  money 
or  other  articles  of  value  found  upon  him,  though  not  connected 
with  the  crime  for  which  he  was  arrested,  and  which  cannot  be 
used  as  evidence  on  the  trial,  by  means  of  which  if  left  in  his 
possession,  he  may  procure  his  escape  or  obtain  tools,  implements 
or  weapons  with  which  to  effect  his  escape.^"  Sureties  are  liable  for 
the  official  acts  of  their  principal,  but  not  for  his  acts  which  are 
not  a  part  of  his  official  duties.  Thus,  where  a  sheriff  goes  into 
another  State  and  falsely  represents  that  he  has  extradition  papers 
and  arrests  a  person,  his  sureties  are  not  liable  for  such  act,  but 
they  are  liable  for  his  acts  after  coming  back  to  his  own  State.''^ 

§  324.  Levying  on  a  Stranger's  Property  and  on  Property 
Exempt. — The  sureties  of  sheriffs  and  constables  undertakes  that 
their  principal  shall  faithfully  perform  all  duties  imposed  upon 
their  principal  by  law  as  such  officers.  It  is  as  much  their  duty 
to  refrain  from  committing  wrongful,  oppressive  and  injurious 

12.  Diers  v.  Mallon,  46  Neb.  121,  64  Iowa  101;  Holker  v.  Hennessy,  141 
N.  W.  722,  50  Am.  St.  Rep.  598;  Fire-  Mo.  527,  42  S.  W.  1090,  64  Am.  St. 
stone  V.  Rice,  71  Mich.  377,  38  N.  W.  Rep.  524;  Closson  v.  Morrison,  47  N. 
885,  15  Am.  St  Rep.  266.  H.  482,  93  Am.  Dec.  459. 

13.  Rusher  v.  State,  94  Ga.  363,  21  15.  Closson  v.  Morrison,  47  N.  H. 
S.  E.  593,  47  Am.  St.  Rep.  175.  482;    Holker   v.    Hennessy,    141    Mo, 

14.  Commercial  Exchange  Bank  v.  527,  42  S.  W.  1090. 

McLeod,  65  Iowa  665,  19  N.  W.  329,  16.  Kendall  v.  Aleshire,  28  Neb. 
22  N.  W.  919;   Reifsnider  v.  Lee,  44    707,  45  N.  W.  167. 


.333 


Bonds  of  Public  Officers  and  Agents. 


J24: 


acts  under  color  of  their  office  as  it  is  to  perform  their  affirmative 
official  acts  in  a  proper  manner.  While  there  are  a  few  decisions 
which  hold  the  opposite  view,  jet  the  great  weight  of  authority 
is  that  a  levy  by  such  officers  upon  property  of  a.  third  person,  is 
a  breach  of  their  bond  for  which  the  sureties  are  liable ;"  and  it 
makes  no  difference  whether  the  officer  makes  the  levy  or  attach- 
ment knowingly  or  by  mistake.^*  And  the  same  rule  applies  when 
the  officer  levies  upon  and  sells  exempt  property. ^^ 

In  some  jurisdictions  it  is  held  that  the  wrongful  levy  and  sale 
of  property  of  a  stranger  under  an  execution  against  another  per- 


17.  United  States. — United  States 
v.  Hine,  3  MacAr.  27. 

California. — Van  Pelt  v.  Little,  14 
•Cal.  194. 

Connecticut. — Town  of  Norwalk  v. 
Ireland,  68  Conn.  1,  35  All.  804. 

District  of  Columbia.  —  United 
States  V.  Hine,  3  MacAr.  27. 

Illinois. — Horan  v.  People,  10  111. 
App.  21;  Wiehler  v.  People,  68  111, 
App.  282. 

Iowa. — Charles  v.  Hoskins,  11 
Iowa  329. 

Kentucky.— Hill  v.  Ragland,  24  Ky. 
Law  Rep.  1053,  70  S.  W.  634;  Jewell 
V.  Mills,  3  Bush  62;  Commonwealth 
V.  Stockton,  5  T.  B.  Mon.  192. 

Maine. — Archer  v.  Noble,  3  Me. 
418. 

Massachusetts.  —  Inhabitants  v. 
Wilson,  13  Gray  385;  State  v.  Fitz- 
patrick,  64  Mo.  185. 

Michigan. — People  v.  Merscreau, 
74  ]\Iich.  687,  42  N.  W.  153. 

Minnesota, — Hursey  v.  Marty,  61 
Minn.  430,  63  N.  W.  1090. 

Missouri. — State  v.  Moore,  19  Mo. 
366;  Tracy  v.  Goodwin,  4  Allen  409. 

Nebraska. — Turner  v.  Killian,  12 
Neb.  580,  12  N.  W.  101. 

New  York. — Fobs  v.  Rain,  39  Misc. 
R.  316,  79  N.  Y.  Supp.  872. 

Ohio. — Hubbard  v.  Elden,  43  Ohio 
St.  380;  State  v.  Jennings,  4  Ohio  St. 
418. 


PennsylTania,— Brunott  v.  McKee, 
6  Watts  &  S.  513;  Carmack  v.  Com- 
monwealth, 5  Binn.  184. 

Texas.— Holliman  v.  Carroll,  27 
Tex.  23. 

Virginia. — Sangster  v.  Common- 
wealth, 17  Gratt.  124. 

Washington. — Marfins  v.  Willard, 
12  Wash.  528. 

18.  California. — Van  Pelt  v.  Little, 
14  Cal.  194. 

District  of  Columbia.  —  United 
States  V.  Hine,  3  MacAr.  27. 

Kentucky.  —  Jewell  v.  Mills,  3 
Bush  62;  Commonwealth  v.  Stock- 
ton, 5  T.  B.  Mon.  192. 

Nebraska, — Turner  v.  Killian,  12 
Neb.  580,  12  N.  W.  101. 

Ohio. — State  v.  Jennings,  4  Ohio 
St.  419. 

Texas. — Holliman  v.  Carroll,  27 
Tex.  23. 

Virginis. — Sangster  v.  Common- 
wealth, 17  Gratt.  124. 

19.  Illinois. — Casper  v.  People,  6 
111.  App.  28. 

Minnesota. — Hursey  v.  Marty,  61 
Minn.  430,  63  N.  W.  1090. 

Missouri. — State  v.  Carroll,  9  Mo. 
App.  275. 

New  York. — Grieb  v.  Northrup,  66 
App.  Div.  86,  72  N.  Y.  Supp.  481. 

Texas. — Cole  v.  Cranford,  69  Tex. 
124,  5  S.  W.  646. 


§  ;325 


Suretyship  and  Guaranty. 


334 


son  is  a  mere  trespass,  for  which  the  sureties  of  the  officer  are 
not  liable."* 

The  general  rule  applies  to  United  States  marshals  who  levy 
on  a  stranger's  property/^  and  the  same  rule  will  apply  to  coroners 
acting  as  sheriffs/^ 

§  325.  Officers  Liable  for  Ministerial  Duties.— The  officer 
and  his  sureties  are  liable  for  defaults  arising  out  of  the  perform- 
ance of  his  ministerial  duties,  which  include  those  acts  which  the 
law  authorizes  him  to  perform,  and  which  are  considered  to  come 
within  the  scope  of  his  office.^  The  officer  is  not  civilly  liable  for 
judicial  acts.^*  But  he  and  his  sureties  are  liable  for  his  acts  for 
falsely  certifying  as  true,  bills  rendered  against  the  county,  as  such 
action  is  a  misfeasance  f"  and  in  general  for  overpayment  exacted 
by  him  on  process,^^  except  when  he  is  honestly  mistaken  in  mak- 
ing such  charge ;"  for  misconduct  as  assignee  f^  for  failure  to  take 
a  sufficient  bond  ;^^  for  failure  to  properly  care  for  security  re- 
ceived by  him  in  connection  with  levying  an  attachment  f'^  for  fee 
bills  given  him  for  collection  ;"^  for  omitting  imperative  statutory 
requirements;^^  for  a  failure  to  levy;^'  for  an  escape  of  prisoner;^* 


20.  Delaware. — Stcckwell  v.  Rob- 
inson, 9  Houst.  313. 

Maryland. — Carey  v.  State,  34  Md. 
105. 

New  Jersey. — State  v.  Conover,  28 
N.  J.  L.  224. 

New  York. — People  v.  Lucas,  93  N. 
Y.  585. 

North  Carolina. — State  v.  Brown, 
11  Ired.  (N.  C.)   141. 

Wisconsin. — Taylor  v.  Parker,  43 
"Wis.  78;  State  v.  Mann,  21  Wis.  684. 

Compare  Dishneau  v.  Newton,  91 
Wis.  199,  64  N.  W.  879. 

21.  Lammon  v.  Feusier,  111  U.  S. 
17,  4  Sup.  Ct.  286,  28  L.  Ed.  337. 

22.  Tieman  v.  Haw,  49  Iowa  312. 

23.  McGraw  v.  Governor,  19  Ala. 
89;   State  v.  Powell,  44  Mo.  436. 

As   to   scope  of  liability,   see,   also, 
§  323. 

24.  Scott  V.  Ryan,  115  Ala.  587,  22 


So.  284;  Commonwealth  v.  Tilton,  23 
Ky.  Law  Rep.  753,  63  S.  W.  602. 

25.  People  Use  of  Macon  County  v. 
Foster,  133  111.  496,  23  N.  E.  615. 

26.  Snell  v.  State,  43  Ind.  359; 
Kane  v.  Railroad  Co.,  5  Neb.  105. 

27.  State  v.  Ireland,  68  N.  C.  300. 

28.  Huddleson  v.  Polk,  70  Neb.  483, 
97  N.  W.  624. 

29.  Love  V.  People,  91  111.  App.  237. 

30.  Comstock  Castle  Stove  Co.  v. 
Caulfield  (Neb.)  95  N.  W.  783. 

81.  State  V.  Barnes,  52  W.  Va.  85, 
43  S.  E.  131. 

32.  Slifer  v.  State,  114  Ind.  291,  14 
N.  E.  595,  16  N.  E.  623. 

33.  Habershaw  v.  Sears,  11  Ore. 
431,  5  Pac.  208;  Commonwealth  v. 
Fry,  4  W.  Va.  721. 

34.  People  v.  Dikeman,  3  Abb. 
App.  Dec.  520. 


335  Bonds  of  Public  Officers  and  Agents.  §  326 

for  negligent  injuries  to  a  prisoner;"^  for  a  wrongful  killing;"'^  for 
failure  to  return  process;^''  to  deliver  goods  to  the  defendant 
on  discontinuance  of  the  action  ;^^  for  non-payment  of  money  col- 
lected in  his  official  capacity  f^  for  loss  of  attachment  by  his  neglect 
or  voluntary  act;^**  for  damages  to  property  seized,  caused  by  his 
neglect ;"  for  failure  to  sell  property  levied  upon  ;*"  for  accept- 
ing insufficient  sureties  on  a  replevin  bond  ;'*^  for  non-payment  of 
rent,  with  money  received  for  sale  of  tenant's  goods.*^ 

On  the  other  hand,  he  and  his  sureties  are  not  liable  for  money 
which  he  had  no  legal  authority,  by  virtue  of  his  office,  to  re- 
ceive ',*^  because  it  was  not  within  the  scope  of  his  official  duties  ;^^ 
nor  are  the  sureties  liable  for  penalties  attached  to  his  bond ;" 
nor  are  they  liable  for  acts  not  within  the  scope  of  the  officer's 
duty,^^  that  is,  duties  not  imposed  upon  him  by  law."*^ 

§  326.  Duty  to  Individuals  and  to  the  State. — At  common  law 
where  the  acts  are  ministerial  and  the  officer  is  bound  to  render 
services  for  compensation  for  fees  or  salary,  he  is  liable  for  mis- 
feasance or  non-feasance  to  the  party  who  is  injured  by  them, 

35.  Aippeal  of  Jenkins,  25  Ind.  App.  Pa.  St.  439;  Bank  v.  Potius,  10  "Watts 
532,  58  N.  E.  560.  148;  Lyon  v.  Horner,  32  W.  Va.  432. 

36.  Johnson  v.  Williams'  Adm'r,  41.  Witkowski  v.  Hern,  82  Cal.  604, 
23  Ky.  Law  Rep.  658,  68  S.  W.  759,  23  Pac.  132;  Tiernan  v.  Haw,  49 
54  L.  R.  A.  220;   Moore  v.  Lindsay,  Iowa  312. 

31  Tex.  Civ.  App.  13,  71  S.  W.  298.  42.  Wagmire  v.  State,  80  Ind.  67. 

87.  Babka  v.  People,  73  111.  App.  43.  Carter  v.  Duggan,  144  Mass.  32, 
246;  McNee  v.  Sewell,  14  Neb.  532,    10  N.  E.  486. 

16  N.  W.  827.  44.  Governor  v.  Edwards,  4   Bibb 

88.  Dennie    v.    Smith,    129    Mass.    (Ky.)  219. 

143;  Levy  v.  McDonald,  45  Tex.  220.       45.  Governor    v.    Wise,    1    Cranch 

89.  Colorado. — Blythe  v.  People,  142;  Turner  v.  Collier,  4  Heisk. 
16  Colo.  App.  526,  66  Pac.  680.  (Tenn.)   89;  Heidenheimer  v.  Brent, 

Kentucky.— Bates  v.  Smith,  23  Ky.  59  Tex.  533. 

Law  Rep.  2134,  66  S.  W.  714.  46.  Walsh   v.    People,   6   111.   App. 

Missouri. — State  ex  rel.  Spaulding  204. 

V.  Peterson,  142  Mo.  526,  39   S.  W.  47.  State    Bank     v.     Brennan,     7 

453,  40  S.  W.  1094.  Colo.  App.  427;   State  v.  Nichols,  39 

Nebraska. — Milligan  v.   Gollen  64  Miss.  318. 

Neb.  561,  90  N.  W.  541.  48.  Greenwell    v.    Commonwealth, 

Texas.— De  La  Garz  v.  Corolan,  21  78   Ky.    320;    King  v.   Baker,   7   La. 

Tex.  387.  Ann.  571;  State  v.  Da,vis,  88  Mo.  585. 

40.  Commonwealth  v.  Coutner,  18  49.  Commonwealth   v.    Lentz,   106 

Pa.  St.  643. 


f  §  328,  329  Suretyship  and  Guaranty.  336 

but  is  not  civilly  liable  for  judicial  acts.^°  It  is  not  under  his 
ministerial  functions  to  preserve  the  peace.  For  neglect  in  the 
performance  of  that  duty  he  is  punishable  by  indictment,  and  no 
-civil  action  at  common  law  therefor  lies  against  him  by  persons 
who  have  suffered  injury  from  violence  of  mobs  or  insurrection;" 
and  his  sureties  have  been  held  not  liable  for  a  wrong  committed  by 
him  in  aiding  and  abetting  a  mob  in  lynching  a  prisoner  committed 
to  his  charge/^  But,  as  a  general  rule,  where  he,  within  the  scope 
■of  his  duties,  commits  malfeasance,  his  sureties  are  liable.  Thus, 
•where  an  officer  delivers  a  prisoner,  handcuffed,  to  a  deputy  whom 
he  knows  to  be  incompetent,  and  that  a  mob  is  likely  to  seize  and 
execute  the  prisoner,  the  officer  and  his  sureties  are  liable  for  such 
neglect.^^  And  where  a  deputy  sheriff  makes  an  arrest  in  the  line 
of  his  duty,  though  illegal  because  in  excess  of  his  duty,  his  princi- 
pal, the  sheriff  'and  his  sureties,  are  liable.^* 

§  327.  Amount  of  Sureties'  Liability. — The  surety's  liability 
is  limited  to  the  amount  named  in  the  bond,  and  he  cannot  be  held 
in  damages  for  a  larger  amount.^^  So  where  the  sureties  of  the 
officer  have  paid  the  full  amount  of  the  bond  in  damages,  they  are 
no  longer  liable  on  the  bond.^^  The  judgment  on  the  bond  is  gen- 
erally for  the  penal  sum,^^  and  the  damages  assessed  according  to 
the  finding  of  the  jury,  which  may  not  be  the  full  amount  of  the 
hond.  Of  course  the  legal  interest  may  be  added  to  the  penalty 
irom  the  date  the  liability  accrued. ^^ 

§  328.  Liability  of  Sureties  After  Term  Expires. — The  Au- 
thorities are  not  uniform  as  to  the  liability  of  the  sureties  for  de- 
faults of  their  principal  after  his  term  expires.  One  line  of  de- 
cisions holds  that  where  the  officer's  time  expires,  his  sureties  are 

50.  Scott  V.  Ryan,  115  Ala.  587,  22  Miss.  7,  23  So.  388;  Lee  v.  Charmley, 
So.    284;    Commonwealth    v.    Tilton,    20  N.  D.  570,  129  N.  W.  448. 

23  Ky.  Law  Rep.  753,  63  S.  W.  602.  55.  Marcy  v.  Praeger,  34  La.  Ann. 

51.  South    V.    Maryland,    18    How.    544. 

(U.  S.)   396,  15  L.  Ed.  433.  As  to  surety  being  liable  only  for 

52.  Cocking  v.  Wade,  87  Md.  529,  the  penalty  of  the  bond,  see  §  74 
40  Atl.  104.  herein. 

53.  Asher  v.  Cabell,  50  Fed.  818.  56.  Bathwell  v.  Shiffield,  8  Ga.  569. 

54.  Cash  V.  People,  32  111.  App.  57.  Turner  v.  Sisson,  137  Mass. 
250;   Yount  v.  Carney,  91  Iowa  559,  191. 

60  N.  W.  114;   Brown  v.  Weaver,  76       58.  Holmes    v.    Standard    Oil    Co., 

183  111.  70,  55  N.  E.  647. 


337  Bonds  of  Public  Officees  and  Agents.  §  329 

released  from  further  liability.  Thus,  where  a  sheriff  is  re-elected 
and  fails  to  give  a  new  bond,  his  othce  becomes  vacant,  and  his 
sureties  on  his  old  bond  are  thereby  discharged  from  liability  for 
his  malfeasance  or  non-feasance  after  his  re-election  and  failure 
to  qualify.^  So  where  an  officer's  time  expires  while  he  holds 
an  execution,  and  he  is  re-elected  and  qualifies,  and  then  does  not 
return  the  execution  according  to  law,  the  sureties  on  the  new 
bond  are  liable,  but  not  those  on  the  first  bond.^"  And  so  where 
it  is  the  duty  of  an  officer  at  the  close  of  his  term  to  deliver  un- 
executed processes  to  his  successor,  but  he  does  not,  and  collects 
money  and  uses  it  himself,  his  sureties  are  not  liable.^^ 

But  in  other  jurisdictions  the  sureties  are  liable  for  money 
paid  to  the  officer,  after  the  expiration  of  his  office,  for  processes 
executed,  which  came  into  his  hands  before  the  expiration  of  his 
term  of  office. ^^  He  must  finish  the  executions  commenced  dur- 
ing his  term  of  office.^^  Having  received  money  during  his  term 
of  office,  it  is  the  officer's  duty  to  pay  it  over  to  the  proper  party, 
and  if  he  does  not,  he  and  his  sureties  are  liable  until  he  does, 
notwithstanding  his  term  of  office  has  expired.^^  The  sureties  of 
the  officer  are  liable  only  for  the  acts  of  their  principal  during  the 
term  of  office  or  while  he  is  exercising  the  functions  of  his  office 
pursuant  to  law.®^ 

§  329.  Sureties'  Liability  on  Bond  of  Clerks  of  Court. — Laws 
have  been  enacted  compelling  clerks  of  court  to  give  bond  for  the 
faithful  performance  of  their  duties.  Such  bond  covers  misap- 
propriation of  funds  given  into  the  clerk's  hands,  and  all  min- 
isterial duties.  And  the  sureties  on  such  bonds  are  liable  for  the 
performance  of  duties  imposed  upon  him  which  come  within  the 

59.  Bennett  v.  State,  58  Miss.  557.    1074;    Campbell   v.    Cable,    2    Sneed 
As  to  officers  holding  over,  see  §    (Tenn.)  18. 

^05  herein.  64.  Freeholders    v.    Wilson,    Ifi    N. 

60.  Sherrell  V.  Gtoodrum,  3  Humph.  J.  L.  110;  Governor  v.  Mentfort,  1 
<Tenn.)   419.  Iredell  (N.  C.)   155;  King  v.  Nichols, 

61.  State  V.  Morgan,  59  Miss.  349.    16  Ohio  St.  80;  Brobst  v.  Killen,  16 
See,  also,  Clark  v.  Lamb,  78  Ala.    Ohio    St.    382;    Peabody  v.    State,    4 

406;  State  v.  McCormack,  50  Mo.  568.  Ohio  St.  387. 

62.  Elkin  v.  People,  3  Scam.  (111.)  65.  People  for  Use  of  Macon 
207;  State  v.  Roberts,  12  N.  J.  L.  County  v.  Foster,  133  111.  426,  23  N. 
114.  E.  615. 

63.  Clark  v.  Withers,   2  Ld.  Ray. 

22 


§  330  Suretyship  and  Guaranty.  338 

scope  of  his  office,  whether  required  by  law  enacted  before  or 
after  the  execution  of  the  bond.^^  They  are  liable  for  money 
legally  paid  to  him;"  because  such  money  is  received  by  virtue 
of  his  office.'^*  They  are  also  liable  for  omission,  neglect  or  mis- 
conduct of  the  clerk.^^ 

When  a  new  bond  is  given  upon  demand  of  the  sureties,  the 
new  sureties  are  not  liable  for  money  received  and  misappropri- 
ated before  they  executed  the  new  bond,  unless  they  so  stipulate^ 
otherwise  the  old  sureties  only  are  liable.^" 

§  330-  Compensation  of  Clerk. — It  is  often  the  case  that  a 
clerk's  compensation  is  limited  by  statute,  and  he  is  required  to- 

66.  Weisenborn  v.  People,  53  111.  MissourL — State  v.  Gideon,  158 
App.  32,  58  111.  App.  114,  116;  Gover-    Mo.  327,  59  S.  W.  99. 

nor  V.  Rldgway,  12  111.  14.  Nebraska. — Bantley    v.    Baker,    61 

Who  may  sue.     Where  an  official  Neb.  92,  84  N.  W.  603. 

bond  runs  to  the  people  of  a  State  North  Carolina. — Smith  v.  Palton, 

an  action  on  the  bond  for  a  misap-  131  N.  C.  396,  42  S.  E.  849. 

propriation  of  public  funds  is  prop-  Texas. — Scott    v.    Hunt,    92    Tex, 

erly    brought    in    the    name   of    the  389,  49  S.  W.  210. 

State  for  the  use  of  the  board  of  Wisconsin. — Milwaukee   v.   United 

county     commissioners     under     the  States  Fidelity  &  Guaranty  Co.,  144 

statutes     in     Colorado.       Cooper     v.  Wis.  603,  129  N.  W.  686. 

People  for  Use  of  Board  of  Com'rs  Failure  to  pay  orer  naturalization 

of  Arapahoe  County,  28  Colo.  87,  63  fees.     Sureties  liable  for.     City  and 

Pac.  314.  County  of  San  Francisco  v.  Mulcrevy 

Where  a  clerk  of  a  United  States  (Cal.  App.  1911),  113  Pac.  339.     . 

court  misappropriates  money  placed  qs.  Swift  v.  State,  63  Ind.  81;  Mor- 

in    his    hands    by    a    private    suitor,  gan  v.   Long,  29  Iowa  434;    Peebles 

there  may  be  a  recovery  on  his  bond  y.  Boone,  116  N.  C.  57,  21  S.  E.  187; 

for   such    sum.      Howard    v.    United  Allen  v.  Wood,  2  Baxt.   (Tenn.)   301. 

States,  184  U.  S.  676,  22  Sup.  Ct.  543,  65).  Illinois.— Governor  v.  Dodd,  81 

46  L.  Ed.  754.  111.  i62. 

67.  United  States.— United  States  Indiana.— Sullivan  v.  State  ex  reK 
v.  Abeel,  174  Fed.  12,  98  C.  C.  A.  50.  Langsdale,    121    Ind.    342,    23    N.    E. 

Colorado. — Cooper    v.    People,    28  iso. 

Colo.  87,  63  Pac.  314.  Missouri.— State    v.     Gideon,     158 

Indiana.— State  v.  Flynn,  161  Ind.  Mo.  327,  59  S.  W.  99. 

554,  69  X.  E.  159.  Nebraska.- McDonald     v.     Atkins, 

Iowa.— Walters-Cates    v.     Wilkin-  13  Neb.  568,  14  N.  W.  532. 

son,  92  Iowa  129,  60  N.  W.  514.  Ohio.— State     v.     Sloan,     20     Ohio 

Minnesota. — Northern   Pac.  Ry.  Co.  327, 

v.    Owens,   86   Minn.   188,    90   N.   W.  Tennessee.— Swalling    v.    King,    5 

371,  57  L.  R.  A.  634.  Lea  585. 

70.  Cullom  v.  Dolloff,  94  111.  330. 


339         Bonds  of  Public  Officers  and  Agents.       §§  331,  332 

account  for  all  fees  received  by  him  in  excess  of  that  compensa- 
tion. The  bond  in  such  case  is  so  conditioned,  and  he  and  his  sure- 
ties are  liable  for  the  excess  collected  by  him,^^  and  he  and  his 
sureties  are  liable  for  such  excess  not  turned  over  to  the  State.^^ 

§  331.  Failure  to  Pay  Over  to  Successor  in  Office  or  to  Proper 
Party, — When  the  law  requires  that  each  successive  clerk  shall 
receive  from  his  predecessor  all  the  records,  money  and  prop- 
erty of  the  office,  and  the  retiring  clerk  fails  to  turn  money  over, 
some  decisions  hold  that  suit  may  be  instituted  against  him  without 
any  order  of  court  to  pay  the  money.^^  But  the  weight  of  authority 
is  that  the  failure  of  the  retiring  clerk  to  pay  out  moneys  to  the 
parties  in  interest  constitutes  no  breach  of  the  bond,  until  there 
is  an  order  from  the  court  to  pay  it,  and  a  demand  under  that  or- 
der during  the  clerk's  term  of  office.^* 

It  is  generally  held  that  it  is  a  condition  precedent  to  the  in- 
stitution of  a  suit  on  the  bond  of  the  clerk  for  failure  to  pay  over 
to  the  proper  parties,  money  collected  by  him  during  his  term  of 
office,  that  there  must  be  an  order  from  the  court  to  pay  over 
such  moneys.^^  But  such  order  is  not  necessary  before  suit  when 
the  clerk  is  guilty  of  fraud  and  deceit  in  failing  to  make  correct 
statements  and  illegally  withholding  part  of  the  money  received 
by  him.^^ 

§  332.  Money  Paid  Into  Court  on  Judgment  or  by  Order  of 
Court. — Money  paid  into  court  on  a  judgment,  is  received  '"  by 
the  clerk  by  virtue  of  his  office,  and  upon  his  failure  to  pav  over 
the  money  to  the  proper  party,  his  sureties  become  liable  for  this 
default.'^^     Eeceipt  of  such  money,  whether  paid  voluntarily  to 

71.  Cullom  V.  Dolloff,  94  111.  330;  74.  State  v.  Lake,  30  S.  C.  43. 
Hughes  V.  People,  82  111.  78.  75.  State  ex  rel.   Hickory  County 

72.  United  States  v.  Averlll,  130  U.  v.  Dent,  121  Mo.  162,  25  S.  W.  924. 
S.  335,  9  Sup.  Ct.  546,  32  L.  Ed.  977.  76.  State  ex  rel.  Callaway  County 

73.  Peebles  v.  Boone,  116  N.  C.  57,  v.  Henderson,  142  Mo.  598,  44  S.  W. 
21  S.  E.  187.  737. 

Where    the   statute    requires    that  See,  also,  Stewart  v.  Sholl,  99  Ga. 

clerks  shall  imnctually  pay  over  to  534,  26  S.  E.  757. 

their  successor,  the  omission  of  the  77.  Morgan  v.  Long,  29  Iowa  434. 

word   "  punctually  "   from  the   bond  7S.  Bantley  v.  Baker,   61  Neb.  92, 

will  not  vitiate  it.    Cooper  v.  People,  84  n.  W.  603;   McDonald  v.  Atkins, 

Use  of  Board  of  Com'rs  of  Arapa-  13  Neb.  568,  14  N.  W.  552. 
hoe  County,  28  Colo.  87,  63  Pac.  314. 


§  333  SUEETYSHIP  AND  GUARANTY.  340 

him  or  by  the  sheriff  on  execution,  is  an  official  act,  and  the  clerk's 
failure  to-  account  for  such  money  is  a  breach  of  his  bond  for  which 
his  sureties  are  liable.^^  And  so  when  the  money  is  ordered  paid 
into  court  for  further  orders,  a  failure  to  account  for  the  same 
makes  the  clerk  and  his  sureties  liable.^"  Whether  such  money  is 
legal  tender  cannot  be  raised.^^ 

§  333.  Delinquincies  of  Clerks. — The  duty  of  approving  bonds 
on  appeal  and  his  other  otticial  duties,  are  given  to  the  clerk  of 
the  court  by  law.  So  if  the  clerk,  in  such  cases,  is 
negligent,  or  does  not  make  sufficient  inquiry  as  to  the 
solvency  of  the  sureties,  and  approves  the  bond,  he  and 
his  sureties  are  liable  for  any  damages  that  result  from 
such  action  to  the  parties  in  interest;^"  and  an  un- 
lawful discrimination  between  judgment  creditors  makes  his 
sureties  liable  for  any  damages  resulting  f^  or  for  failure  to  issue 
execution  ;^^  or  a  failure  to  enroll  a  judgment  so  as  to  become  a 
lien;^^  or  to  make  a  proper  entry  of  a  judgment;*^  or  to  make  an 
erroneous  satisfaction  of  judgment;"  or  failure  to  enter  case  on 
the  docket  f^  or  a  refusal  to  issue  citation  f^  or  a  failure  to  trans- 

79.  State  v.  Watson,   38  Ark.   96;  Fed.  477,  108  C.  C.  A.  455,  affirming 
Walters-Cates  v.  Wilkinson,  92  Iowa  Kinney  v.  United  States  Fidelity  & 
129,  60  N.  W.  514;  Craig  v.  Governor,  Guaranty  Co.  (U.  S.  C.  C),  182  Fed. 
3  Cold.  (Tenn.)  244.  1005,  and  holding  no  liability  for  re- 
Compare     Waters     v.     Carroll,     9  fusal    of   clerk    to    enter    a    default 

Yerg.  102;  Hardin  v.  Carrico,  3  Met.  judgment   in   garnishment   proceed- 

(Ky.)  261.  ings,    it   not    appearing   that    there 

80.  Billings  v.  Teeling,  40  Iowa  were  any  funds  of  the  defendant  in 
607.  the  possession  of  the  garnishee. 

81.  Billings  v.  Teeling,  40  Iowa  Burden  of  proof  is  on  plaintiff  in 
607.  an  action  on  the  bond  to  show  dam- 

82.  Billings  v.  Lafferty,  31  111.  ages.  Kinney  v.  United  States  Fi- 
318;  Field  &  Co.  v.  Wallace,  89  Iowa  delity  &  Guaranty  Co.  (U.  S.  C.  C), 
597,  57  N.  W.  303;  Hubbard  v.  Swit-  152  Fed.  1005. 

zer,  47  Iowa  681;  Brock  v.  Hopkins,        gg,  ^^^^^  y    Do^j^j^  gl  111.  162. 

5  Neb.  231.  87.  Van   Etten   v.   Commonwealth, 

83.  Newbern  Bank  v.  Jones,  2  Dev.    io2  Pa.  St.  596. 

Eq.  (N.  C.)   284.  88.  Brown  v.  Lester,  13  Sm.  &  M. 

84.  Badham  v.  Jones,  64  N.  C.  655.    (Miss.)  392. 

85.  Strain  v.  Babb,  30  S.  C.  342.  89.  Anderson  v.  Johett,  14  La.  Ann. 
Examine  United  States  v.   United    624. 

States  Fidelity  &  Guaranty  Co.,  186 


341  Bonds  of  Public  Officers  and  Agents.  §  334 

mit  transcript;'"'  or  to  make  a  false  certificate  of  record  of  judg- 
ment;^^  or  lor  making  a  false  certificate  of  acknowledgment;®^ 
for  a  loss  of  fees  to  the  county  by  a  failure  to  tax  them;'"*^  or  for 
interest  collected  on  State  funds  deposited  by  him.®* 

But  his  sureties  are  not  liable  for  withholding  of  moneys  which 
he  had  no  right  to  receive  in  his  legal  capacity.®''  And  if  it  is  not 
his  duty  to  approve  a  bond,  his  sureties  are  not  liable  for  his  ap- 
proval of  a  defective  bond.®®  But  his  sureties  are  liable  upon  a 
bond  executed  after  the  receipt  of  money,  but  while  unaccounted 
for,  for  non-payment  of  such  money  to  the  proper  parties.®^ 

The  clerk  is  a  ministerial  officer,  and  is  liable  for  damages  oc- 
casioned by  his  neglect  in  taking  insufficient  security  on  appeal 
bonds ;  if  he  exercises  a  reasonable  degree  of  care  in  the  perform- 
ance of  his  official  duty,  he  is  not  liable,  nor  his  sureties,  even  if 
the  security  proves  insufficient.®^  What  is  due  care  and  diligence 
in  the  approval  of  an  appeal  bond,  is  a  question  of  fact.®® 

§  334.  Sureties  of  Justices  of  the  Peace. — Sureties  on  the  bond 
of  a  justice  of  the  peace  are  not  liable  for  his  judicial  acts,  but 
they  are  liable  for  his  neglect  or  misconduct  of  his  acts  in  his 
ministerial  capacity.  His  sureties  undertake  to  pay  on  demand 
to  every  person  who  may  be  entitled  thereto,  all  moneys  which  the 
justice  may  receive  in  his  official  capacity,  and  which  he  with- 
holds.   But  the  sureties  do  not  undertake  to  pay  money  which  the 

90.  Collins  V.  McDaniel,  66  Ga.  Where  a  clerk  performs  unofficial 
203.  acts  by  the  direction  of  the   court 

91.  Ziegler  v.  Commonwealth,  12  money  paid  him  therefor  cannot  be 
Pa.  St.  227.  recovered    on    his    bond.      State    v. 

92.  Bartels     v.     People     ex     rel.    Flynn,  161  Ind.  554,  69  N.  E.  159. 
Goldthwaite,   (Wolfe  v.  People),  152       96.  Dewey  v.  Kavanaugh,  45  Neb. 
111.  557,  38  N.  E.  898.  233,  63  N.  W.  396. 

93.  State  v.   Gideon,  158   Mo.  327,       97.  State  v.  Moses,  18  S.  C.  366. 
59  S.  W.  99.  98.  Field  &  Co.  v.  Wallace,  89  Iowa 

94.  Vansant  v.  State,  96  Md.  119,  597,  57  N.  W.  303;  Brock  v.  Hop- 
53  Atl.  711.  kins,  5  Neb.  231. 

95.  State  v.  Flynn,  161  Ind.  554,  69  Compare  McNutt  v.  Livingston,  7 
N.   E.   159;    Jenkins  v.   Lemonds,   29  Sm.  &  M.  (Miss.)  641. 

Ind.  294;  Bowers  v.  Fleming,  67  Ind.        99.  Field  &  Co.  v.  Wallace,  89  Iowa 
541;    Elliott  v.   Commonwealth,   144    597,   57   k.   w.   303;    Brock  v.   Hop- 
Ky.  335,  138  S.  W.  300;    Bantley  v.    kins,  5  Neb.  231. 
Baker,   61   Neb.   92.   84   N.   W.   603; 
State  V.  Enslow,  41  W.  Va.  744. 


§   334 


Suretyship  and  Guaranty. 


342 


justice  may  obtain  in  some  unlawful  manner  as  by  a  mere  tres- 
pass, unless  the  bond  so  provides.^ 

The  bond  may  provide  that  he  and  his  sureties  shall  be  liable 
for  acts  committed  through  favor,  fraud  or  partiality.^ 

When  he  receives  money  not  in  his  official  capacity  and  mis- 
appropriates it,  his  sureties  are  not  liable.'  Nor  are  his  sureties 
liable  for  the  issuance  of  an  execution  on  a  judgment  after  a  vtTit 
of  certiorari  had  been  granted  where,  though  he  had  been  notified 
verbally  of  the  granting  of  such  writ,  he  had  received  no  official 
notice.* 

l^or  where  he  accepts  money  in  lieu  of  the  bail  required  by 
law,  and  fails  to  properly  account  therefor  can  a  recovery  be  had 
against  them.^  But  he  and  his  sureties  are  liable  for  notes  left 
in  his  hands  for  collection  or  for  money  received  as  a  justice  and 
not  as  a  mere  agent.® 

And  if  the  justice  does  not  perform  his  ministerial  acts  accord- 
ing to  law,  his  sureties  are  liable  for  damages  that  may  accrue.^ 


1.  Barnes  v.  Whitaker,  45  Wis. 
204. 

The  approTcd  or  refusal  to  ap- 
prove a  bond  provided  for  by  Ala- 
bama Code  1907,  §  4281,  by  a  jus- 
tice of  the  peace  is  a  judicial  act 
within  the  rule  that  a  judicial  of- 
ficer is  not  liable  for  damages  for 
erroneous  rulings  in  his  judicial  ca- 
pacity while  acting  within  his  juris- 
diction. King  V  Sawyer,  1  Ala.  App. 
439,  55  So.  320. 

2.  State  V.  Flinn,  3  Blackf.  (Ind.) 
72;  Gowing  v.  Gowgill,  12  Iowa  495. 

His  liability  is  to  be  determined 
either  from  the  terms  of  the  bond 
or  from  the  provisions  of  the  stat- 
ute which  define  his  duties  and  lia- 
bilities. Granger  v.  Boswinkle  (Ind. 
App.  1911),  96  N.  E.  208. 

S.  Cressey  v.  Gierman,  7  Minn. 
S98;  Commonwealth  v.  Kendig,  2  Pa. 
St.  448. 

4.  Frohlichstein  v.  Jordan,  138 
Ala.  210,  35  So.  247. 


5.  Snyder  t.  Gross,  69  Neb.  340,  95 
N.  W.  636. 

6.  Indiana. — Widener  v.  State,  45 
Ind.  244;  State  ex  rel.  Gilman  v. 
Bliss,  19  Ind.  App.  662,  49  N.  E.  1077. 

Iowa. — Bessinger  v.  Dickerson,  20 
Iowa  260. 

Kansas. — Brockett  v.  Martin,  II 
Kan.  378. 

Nebraska. — McCormick  v.  Thomp- 
son, 10  Neb.  484,  6  N.  W.  597. 

Ohio.— Peabody  t.  State,  4  Ohio 
St.  387. 

Pennsylvania. — Ditmars  v.  Com- 
monwealth, 7  Pa.  St.  356;  Common- 
wealth V.  Kendig,  2  Pa.  St.  448. 

7.  Place  V.  Taylor,  22  Ohio  St.  317. 
AVhen  nnder  color  of  his  office  he 

usurps  authority  not  conferred  on 
him  or  acts  beyond  his  jurisdiction, 
he  commits  a  wrong  for  which  he 
and  his  sureties  on  his  official  bond 
are  liable  to  any  person  injured 
thereby.  Earp  t.  Stephens,  1  Ala. 
App.  447,  55  So.  266. 


343        Bonds  of  Public  Officers  and  Agents.       §§  335,  336 

So  where  be  makes  a  false  acknowledgment,  and  is  guilty  of  fraud, 
his  sureties  are  liable  for  anj  injury  arising.**  He  and  bis  sure- 
ties are  liable  if  be  issues  an  attachment  without  the  required 
bond,  though  the  injury  be  nominal;^  of  if  be  neglects  to  enter 
judgment  according  to  law,  and  injury  results  to  the  successful 
party  ;^**  and  so  if  judgment  is  paid  in  without  the  costs  of  suit, 
and  be  takes  out  the  costs  contrary  to  the  orders  of  the  judg- 
ment creditor,  he  and  bis  sureties  are  liable  for  this  breach  of  the 
bond." 

§  335-  Police  Officer. — Police  officers  are  not  strictly  public 
officers  whose  sureties  are  liable  for  their  faithful  performance 
of  their  duties  as  pertain  to  the  public  at  large.  So  upon  general 
principles,  a  party  upon  whom  a  policeman  commits  a  tort  has  no 
right  for  damages  against  his  sureties,  for  the  reason  that  there 
is  no  privity  of  contract  between  him  and  the  officer  or  bis  sure- 
ties. Being  an  entire  stranger  to  the  contract,  it  would  require 
express  legislative  authority  to  give  him  a  right  of  action  thereon.^ 

'A  policeman's  bond,  however,  to  "  well  'and  truly  perform  each 
and  all  the  duties  of  said  office  *  *  *  required  of  him  by  law,'' 
covers  an  unlawful  arrest. ^^ 

§  336.  Sureties  of  Notary  Public. — The  object  of  a  notary's 
bond  is  to  obtain  indemnity  against  the  use  of  official  position  for 
a  wrong  purpose,  which  is  done  under  color  of  office,  and  which 
would  obtain  no  credit  except  from  its  appearing  a  regular  official 
act,  and  within  the  protection  of  the  bond  ;  if  injury  occurs  it  must 
be  made  good  by  all  those  who  sign  the  bond."  Therefore,  his  sure- 
ties are  liable  for  his  misfeasance  in  knowingly  certifying  the  ac- 

8.  McLendon    v.    American    Free-  10.  Larson  v.  Kelly,  64  Minn.  51, 

hold  Land  Mortg.  Co.,  119  Ala.  518,  66  N.  W.  130. 

24  So.  721.  11.  Hodge  v.   People,  78  111.  App. 

».  Head  v.   Levy,   52  Neb.   456,   72  378. 

N.  W.  583.  12.  Alexander  r.  Ison,  107  Ga.  745, 

In   issuing   an   attachment   with-  33  s.  E.  657. 

ont  requiring  the  statutory  affidaTit  13.  Connelly  v.  American  Bonding 

or   bond    he    usurps    authority    not  &  Trust  Co.,  24  Ky.  Law  Rep.  714,  69 

conferred  on  him  and  acts  beyond  S.  W.  959. 

his    jurisdiction    and    his    sureties  14.  People  v.  Butler,  74  Mich.  643, 

are   liable   therefor   to   any   person  42  N.  W.  273. 
Injured  thereby.     Earp  v.  Stephens, 
1  Ala.  App.  447,  55  So.  266. 


§  336 


SUEETYSHIP  AND  GuAEANTY. 


544 


knowledgment  of  a  grantor,  who  is  absent  and  did  not  appear 
before  him,  and  also  for  certifying  an  acknowledgment  without 
reading  it;^^  for  a  false  certificate  knowingly  issued  ;^^  and  for 
neglect  to  cancel  a  mortgage." 

The  holder  of  a  bill  is  authorized  to  give  full  credence  to  a 
notary's  certificate  of  demand  and  notice,  and  may  look  to  the 
notary  for  damages  resulting  from  its  falsity,  when  within  the 
scope  of  bis  official  duties/^  But  the  damages  arising  from  the 
notary's  failure  to  perform  his  official  duties  must  proximately 
and  directly  be  the  result  of  such  neglect/^ 

The  weight  of  authority  is  that  when  a  bank  receives  negotiable 
paper  for  collection,  and  upon  non-payment  by  the  debtor,  the  bank 
gives  it  to  a  notary  for  protest,  the  bank's  responsibility  ceases 
provided  it  exercises  reasonable  care  in  the  selection  of  the 
notary.^''  There  are,  however,  cases  which  hold  that  the  bank  is 
liable  for  the  negligence  of  the  notary  employed  by  it,^^  but  the 
great  weight  of  authority  is  the  other  way. 


The  purpose  is  to  secure  the  per- 
formance of  duties  which  are  incum- 
bent upon  him  to  perform.  Stork  v. 
American  Surety  Co.,  109  La.  713, 
33  So.  742. 

Liable  for  an  act  done  under  color 
of  office.  State  v.  Ryland,  163  Mo. 
280,  63  S.  W.  819. 

15.  People  V.  Colby,  39  Mich.  456. 

16.  Scotten  v.  Fegan,  62  Iowa  236, 
17  N.  W.  497;  Rochereau  v.  Jones, 
20  La.  Ann.  82. 

The  assignee  of  a  mortgage  may 
rely  upon  the  truth  and  regularity 
of  the  certificate  of  acknowledg- 
ment to  the  mortgage  and  the  suf- 
ficiency of  the  notice  imparted  by 
the  record  of  the  same;  and  his 
failure  to  record  his  assignment 
will  not  bar  his  right  of  action 
against  the  notary  and  his  sureties 
because  of  a  false  acknowledgment 
rendering  the  record  thereof  insuf- 
ficient notice  to  charge  a  subsequent 


purchaser.     Wilson  v.  Gribben,  152 
Iowa  379,  132  N.  W.  849. 

17.  Stork  V.  American  Surety  Co., 
109  La.  713,  33  So.  742. 

18.  Fogarty  v.  Finlay,  10  Cal.  239; 
State  V.  Meyer,  2  Mo.  App.  413 ;  Tevis 
V.  Randill,  6  Cal.  632. 

Liable  for  neglect  to  give  notice 
of  dishonor  of  commercial  paper. 
Williams  v.  Parks,  63  Neb.  747,  89  N. 
W.  395. 

19.  Oakland  Bank  of  Savings  v. 
Murfey,  68  Cal.  455,  9  Pac.  843. 

20.  United  States.— Britton  v.  Nic- 
olls,  104  U.  S.  757,  766,  26  L.  Ed.  917. 

Iowa. — First  Nat.  Bank  v.  German 
Bank,  107  Iowa  543,  78  N.  W.  195. 

Louisiana. — Baldwin  v.  Bank,  1 
La.  Ann.  560. 

Massachusetts. — Warren  Bank  v. 
Bank,  10  Cush.  582. 

Ohio.— Baker  v.  Butler,  41  Ohio  St. 
519. 

21.  Montgomery  Co.  Bank  v.  Bank, 
7  N.  Y.  459;  Ayrault  v.  Bank,  47  N. 
Y.  570. 


345 


Boi^Ds  OF  Public  Officers  and  Agents. 


§  337 


§  337'  Tax  Collector. — Where  the  law  requires  absolutely  a 
ministerial  act  to  be  done  by  a  public  olticor,  a  neglect  or  refusal 
to  do  such  act  makes  him  liable  to  respond  in  damages  to  the  ex- 
tent of  the  injury  arising  from  his  conduct.^^  Hence,  the  neglect 
of  a  collector  of  his  official  duty  in  collecting  taxes  makes  his 
sureties  liable  upon  his  bond.^^  If  the  statute  authorizing  the 
levying  and  collection  of  taxes  is  unconstitutional  or  otherwise 
invalid,  the  collector  cannot  be  permitted  to  retain  the  money 
illegally  collected  under  color  of  his  office.^*  And  the  failure  to  pay 
over  such  money  constitutes  a  breach  of  the  condition  of  the  bond 
and  the  principal  and  sureties  are  liable.^  Xor  is  it  any  defense 
where  taxes  have  been  collected  and  converted  that  no  warrant 
was  issiied  for  their  collection  or  that  the  warrant  under  which 
the  collector  acted  was  defective.^^  The  sureties  are  liable  for 
funds  misappropriated  by  their  principal.^^     Thus,  where  a  col- 


22.  Amy  v.  Supervisors,  11  "Wall. 
(U.  S.)   136,  20  L.  Ed.  101. 

23.  People  v.  Smith,  123  Cal.  70, 
55  Pac.  765;  Palmer  v.  Pettingill,  6 
Idaho  346,  55  Pac.  653. 

Rece!i»ts  where  taxes  not  col- 
lected. Where  taxes  have  not  been 
collected  by  the  tax  collector  who 
issues  receipts  therefor,  his  sureties 
are  liable.    "Ward  v.  Marion  County, 

26  Tex.  Civ.  App.  361,  63  S.  W.  155,  62 
S.  W.  557. 

24.  Loaisiana. — Mayor   v.    INIerritt, 

27  Lp.  Ann.  568. 

Korth  Carolina. — TiIcGuire  v.  "Wil- 
Vpms,  123  N.  C.  349,  31  S.  E.  627; 
Clifton  V.  "Wynne,  80  N.  C.  145. 

Pennsylvania. — Connell  v.  Craw- 
'"''(1  Co.,  59  Pa.  St.  196;  Moore  v. 
Ml'-sheny  City,  18  Pa.  St.  55. 

Tennessee. — McLean  v.  State,  8 
Heisk.  22. 

"Vermont. — Pawlet  v.  Kelley,  69  Vt. 
398,  38  Atl.  92. 

25.  Boothby  v.  Giles,  68  Me.  160; 
Brunswick  v.  Snow,  73  Me.  179; 
Sandwich  v.  Fish,  2  Gray  (Mass.) 
298;  Tunbridge  v.  Smith,  48  Vt.  648; 


Montpelier  v.  Clarke,  67  Vt.  479,  32 
Atl.  252. 

26.  Lake  County  v.  Neilon,  44  Ore. 
14,  74  Pac.  212. 

27.  King  V.  United  States,  99  U. 
S.  229,  25  L.  Ed.  373;  Soule  v.  United 
States,  100  U.  S.  8,  25  L.  Ed.  536; 
United  States  v.  Stone,  106  U.  S.  525, 
1  Sup.  Ct.  287,  27  L.  Ed.  163;  "Wal- 
ker County  V.  Fidelity  &  Deposit  Co. 
of  Maryland,  107  Fed.  851,  47  C.  C. 
A.  15;  Anderson  v.  Blair,  118  Ga. 
211,  45  S.  E.  28. 

See  Lake  County  v.  Neilon,  44  Ore. 
14,  74  Pac.  212. 

Where  the  bond  given  is  a  lien  on 
the  real  estate  of  the  principal  and 
sureties,  the  proper  official  may,  on 
default,  proceed  in  equity  to  fore- 
close the  lien.  Chatfield  v.  Camp- 
bell, 35  Misc.  R.  (N.  Y.)  355,  71  N. 
Y.  Supp.  1004,  holding  that  the  town 
supervisor  may  so  act. 

Knowledg:e  of  the  person  appoint- 
ing the  collector  of  previous  defal- 
cations by  him  is  held  not  to  relieve 
the  sureties.  Commonwealth  v. 
Jimison,  205  Pa.  St.  367,  54  Atl.  1036. 


§  338  Suretyship  and  Guarivnty.  346 

lector  is  continued  for  a  second  term,  gives  a  new  bond,  and  pays 
arrearage  of  the  first  term  with  money  collected  in  his  second 
term  this  is  a  misappropriation  of  funds,  and  the  sureties  are 
liable,  the  obligee  not  knowing  when  receiving  the  money  of  its 
misappropriation.^ 

The  liabilities  of  the  sureties  are  limited  by  the  terms  of  the 
bond,  and  cannot  be  extended  beyond  the  reasonably  necessary 
import  of  the  same,^*  and  the  bond,  in  the  absence  of  such  an  intent 
clearly  evidenced  therein,  will  not  be  extended  so  as  to  cover 
prior  defalcations.^''  The  collector  and  his  sureties  are  liable  for 
the  uncollected  taxes,  unless  some  valid  excuse  is  shown  for  their 
non-collection.^^ 

Where  the  bond  provides  that  the  taxes  shall  be  settled  by  a 
certain  day,  but  such  settlement  is  not  made  by  the  collector,  a 
demand  on  him  for  settlement  is  not  necessary  before  action  is 
brought. ^^  It  would  be  otherwise  if  the  bond  contained  no  such 
provision,  and  demand  should  be  made  before  bringing  action. ^^ 

In  an  action  on  the  bond  the  sureties  are  estopped  to  deny  that 
their  principal  was  collector  and  therefore  it  is  immaterial  whether 
he  was  an  officer  de  jure  or  de  facto.^* 

§  338.  Subrogation  of  Surety  on  Official  Bond. — Sureties  on 
the  bond  of  public  officers  being  compelled  to  make  good  the  de- 
faults of  their  principal  will,  by  the  fact  of  payment,  become 
equitable  assignees  and  be  subrogated  to  the  position  of  the  State 
in  respect  to  all  its  securities,  liens  and  priorities  for  the  purpose 
of  enforcing  reimbursement  from  their  principal.^^     And   it  is 

28.  Frownfelter  v.  State,  66  Md.  81.  Montpelier  v.  Clarke,  67  Vt. 
80;  Colrain  v.  Bell,  9  Mete.   (Mass.)    479,  32  Atl.  252. 

499;    Commonwealth  v.  Knettle,  182  82.  McGiiire  v.  Williams,  123  N.  C. 

Pa.  St.  176,  38  Atl.  13;  Carpenter  v.  349,  31  S.  E.  627. 

Corwith,    62    Vt.    Ill,    22    Atl.    417;  83.  Commonwealth  v.  McClure,  20 

Lyndon  v.  Miller,  36  Vt.  329;  Gwynne  Ky.  Law  Rep.  1568,  49  S.  W.  789. 

V.  Burnell,  7  CI.  &  Fin.  572.  84.  Town   of  Seabrook   v.   Brown, 

See,  also,  State  v.  Sooy,  39  N.  J.  L.  71  N.  H.  618,  51  Atl.  175. 

539;  Stone  v.  Seymour,  15  Wend.  (N.  85.  Myers  v.  Miller,  45  W.  Va.  595, 

Y.)  20;  State  v.  Smith,  26  Mo.  226.  32  S.  E.  276. 

29.  State  v.  Montague,  34  Fla.  32;  As  to  subrogation  of  sureties  to 
U.  S.  V.  Cheesman,  3  Saw.  424.  creditor's  rights,  see  §§  152  et  seq. 

30.  Lake  County  v.  Neilon,  44  Ore.  herein. 
14,  74  Pac.  212. 


347  Bonds  of  Public  Officers  and  Agents.  §  338 

immaterial  how  the  State's  right  ©f  priority  originated,  whether 
by  the  common  law,  positive  statute  or  contract;  once  established 
that  it  is  entitled  to  rank  as  a  preferred  creditor,  the  same 
preference  will  be  upheld  by  way  of  subrogation  for  the  benefit 
of  the  surety.^*  But  subrogating  a  surety  on  a  recognizance  to 
the  peculiar  remedies  which  the  government  enjoys  is  against 
public  policy,  and  tends  to  subvert  the  object  and  purpose  of  the 
recognizance,  and  cannot  therefore  be  allowed."  And  so  the 
surety  may  lose  his  right  of  subrogation  by  laches.  Thus,  where 
a  surety  has  a  secret  lien  which  is  held  unasserted  until  holders 
of  legal  rights  have  been  thrown  off  their  guard  and  lose  their 
opportunity  to  protect  themselves,  he  cannot  then  bring  it  for- 
ward to  the  injury  of  those  who  had  no  notice.^^ 

S6.  United     States.  —  Hunter    r.  Maryland. — Oram  t.  Wrightson,  51 

United  States,  5  Pet.  173,  8  L.  Ed.  Md.  34. 

86.  PennsylTania. — Boltz,    Estate    of, 

Alabama.— Turner   v.    Teague,    7S  133  Pa.  St.  77,  19  Atl.  303. 

Ala.  554.  Virginia, — Robertson  v.  Trigg,  32 

Georgia. — Irby    v.    Livingston,    81  Gratt.  76. 

Oa.  281,  6  S.  E.  591.  West  Tirginia.— Hawker  t.  Moore, 

Illinois.— Hook    v.    Richeson,    115  40  W.  Va.  49,  20  S.  E.  848. 

111.   431,   5   N.   E.   98;    Crawford  r.  S7.  United  States  v.  Ryder,  110  U. 

Richeson,  101  111.  351.  S.  729,  4  Sup.  Ct.  196,  28  L.  Ed.  308. 

S8.  Gring^B  Appeal,  89  Pa.  St.  336. 


§  339  Suretyship  and  Guaeanty.  348 


CHAPTER  XIII. 

GUAEANTY. 

SicnoN  339.  Definition. 

340.  Classification  of  Guaranties  as  to  Their  Nature. 

341.  Consideration. 

342.  Executory  Consideration. 

343.  Moral  Obligation. 

344.  As  to  Consideration,  Guaranties  are  of  Two  Kinds. 

345.  Guaranties  Where  the  Consideration  is  Entire. 

346.  Guaranty    Where    the    Consideration    Passes    at    Different 

Times  and  is  Separable. 

347.  Indorsement  Before  and  After  Maturity  of  Note. 

348.  Offer  and  Acceptance. 

349.  Guaranty  of  Payment. 

350.  Conditional  Guaranty. 

351.  Guaranty  of  Illegal  Contracts. 

352.  Default  of  Payment  —  Notice  to  Guarantor. 

353.  Notice  of  Default, 

354.  Continuing  Guaranty. 

355.  Letters  of  Credit  May  Be  a  Continuing  Guaranty. 

356.  Construction  of  Contract. 

357.  Negotiability  of  a  Guaranty. 

358.  Negotiabilty  of  a  Guaranty  Under  Seal. 

359.  Guaranty  of  Collection. 

360.  What  is  Due  Diligence. 

361.  Discharge  of  Guarantor. 

362.  Discharge  by  Change  in  the  Principal  Contract. 

363.  Discharge  by  Extension  of  Time. 

364.  Discharge  by  Release  or  Negligent  Loss  of  Securities. 

365.  By  Fraud  and  Duress. 

366.  Guaranty  Covers  Defects  in  the  Original  Contract  —  Failure 

of  Consideration. 

367.  Revocation  of  a  Continuing  Guaranty. 

368.  Death  of  Guarantor. 

369.  Release  of  Co-guarantor. 

370.  What  Law  Governs. 

371.  Statute  of  Limitations. 

372.  Payment  of  Debt  by  Guarantor. 

Sec.  339-  Definition. — A  guaranty  is  an  undertaking  by  one 
person  that  another  shall  perform  his  contract  or  fulfill  his  obli- 
gation, and  if  he  does  not  the  guarantor  will  do  it  himself.^     In 

1.  Gridley  v.  Capen,  72  111.  13;  At-  Gnaranty  defined.  See  Miller  v. 
wood  V.  Lester,  20  R.  I.  660.  Lewiston   National   Bank,    18   Idaho 


349  GUAEANTY.  §    339 

a  legal  and  commercial  sense  it  is  an  undertaking  to  be  answerable 
for  the  payment  of  some  debt  or  the  due  performance  of  some 
contract  or  duty  by  some  person  who  himself  remains  liable  for 
his  own  default.^  A  guaranty  is  an  undertaking  as  in  case  of 
suretyship,  but  a  conditional  one,  to  answer  for  the  debt  or  default 
or  miscarriage  of  another.  Accordingly  in  a  conditional  guaranty 
the  guarantor  contracts  to  pay  if,  by  the  reasonable  exercise  of 
•due  diligence,  the  debt  cannot  be  made  out  of  the  principal.^  The 
liability  of  a  guarantor  is  co-extensive  with  that  of  his  principal, 
unless  it  is  expressly  limited.* 

While  the  undertaking  of  a  guarantor  is  technically  different 
from  that  of  a  surety,^  yet  the  contract  of  guaranty  is  the  obliga- 
tion of  surety.^  Both  are  accessory ;  a  guaranty  is  a  scondary,  and 
suretyship  a  primary,  obligation.^  The  undertaking  of  a  guaran- 
tor is  his  own  separate,  independent  contract,  distinct  from  that  of 
the  principal  debtor.^ 

The  contract  of  an  indorser  is  primary,  and  that  of  transfer; 
a  guaranty  is  that  of  a  security  f  a  guarantor  is  held  to  a  stricter 
measure  of  responsibility.^** 

A  guaranty  may  be  retrospective  in  its  operation  so  as  to  em- 
brace debts  or  contracts  where  it  appears  that  such  was  the  inten- 
tion of  the  parties  f'^  but  such  construction  can  only  be  given  to  a 
guaranty,  where  by  express  words,  or  by  necessary  implication,  it 


124,  108  Pac.  901;   Bailey  v.  Miller,  6.  Davis  v.  Wells,  104   U.   S.   159, 

45  Ind.  App.  475,  91  N.  E.  24;  North-  26  L.  Ed.  686. 

ern   State  Bank  of  Grand  Forks  v.  7.  Hooper  v.  Hooper,  81  Md.  155, 

Bellamy,  19  N.  D.  501,  125  N.  W.  888;  31  Atl.  508. 

Mott  Iron  Works  v.  Clark,  87  S.  C.  Contract  of  grnarantor  a  secondary 

199,  tj9  S.  E.  227.  obligation  within  N.  D.  Rev.  Codes, 

2.  Andrews  v.   Watson,   26   Wend.  1905,  §  6494.     Northern   State  Bank 
(N.  Y.)  425,  435.  of  Grand  Forks  v.  Bellamy,  19  N.  D. 

3.  Welsh  v.  Ebersole,  75  Va.  651,  509.  125  N.  W.  888. 

656.  8.  Abbott  v.  Brown,  131  111.  108,  22 

4.  Richardson  v.  Allen,  74  Ga.  719 ;  N.  E.  813. 

Little  V.  Bradley,  43  Fla.  402,  31  So.  9.  First  Nat.  Bank  of  San  Diego  v. 

342;   Hooper  v.  Hooper,  81  Md.  155,  Babcock,  94  Cal.  96,  29  Pac.  415. 

31  Atl.  508.  10.  Arents    v.    Commonwealth,    18 

As  extent  of  liability  under  con-  Graft.  (Va.)  750. 

tract,  see  §  356  herein.  11.  Hammond  v.   Johnson,  20   111. 

5.  Kramp  v.  Hatz,  52  Pa.  St.  525.  367;  People  v.  Lee,  104  N.  Y.  441.  10 

N.  E.  884. 


§  340  Suretyship  and  Guaeanty.  350 

clearly  appears  to  be  the  intent  of  the  parties  to  embrace  past 
contracts.  ^'^ 

§  340.     Classification    of    Guaranties    as   to   Their    Nature. — 

Guaranties  are  classified  into  general  or  special,  limited  or  con- 
tinuing, absolute  or  conditional.  Upon  the  terms  of  a  general 
contract  any  person  is  entitled  to  advance  money  or  incur  liability 
upon  compl3'ing  with  the  provisions,  and  may  then  enforce  th& 
same  as  though  he  was  specially  named  therein. ^^  A  special 
guaranty  is  addressed  to  a  particular  individual  or  firm,  and 
such  individual  or  firm  alone  has  the  right  to  act  upon  it/*  A 
limited  or  continuing  guaranty  may  be  for  a  single  act  or  con- 
tinuing.^^ Where  the  guaranty  looks  to  a  future  course  of  deal- 
ing for  an  indefinite  time,  or  a  succession  of  credits  to  be  given, 
it  is  to  be  deemed  a  continuing  guaranty.^^  Guaranties  without 
limitation  as  to  time  or  amount  will  be  considered  to  refer  to  a 
single  transaction.^^  An  absolute  guaranty  is  an  unconditional 
promise  of  pajinent  or  performance  on  default  of  the  principal; 
and  the  guarantee  may  proceed  at  once  against  the  guarantor  on 
default  of  the  principal  without  prior  notice  to  the  guarantor.  A 
guaranty  is  conditional  where  there  is  some  extraneous  event  be- 
yond the  mere  default  of  the  principal  by  which  the  guaranty  be- 
comes binding,  and  the  liability  does  not  attach  immediately  upon 
non-payment  or  non-performance  of  the  principal.  It  is  neces- 
sary to  fix  the  liability  on  the  guarantor  that  there  should  be 
notice  or  acceptance  of  the  guarantee,  and  notice  of  the  principal's 

12.  People  V.  Lee,  104  N.  Y.  441,  10  15.  Birdsall  v.  Heacock,  32  Ohio 
N.  E.  844;  Pritchett  v.  Wilson,  39  Pa.    St.  184. 

St.  421.  16.  Twohy  v.  McMurran,  .57  Minn. 

See  §  4.  242,  59  N.  W.  301. 

See,  also,  National  Bank  of  Com-  See,     also.     Merchants'     National 

merce  v.  Rockefeller,  174  Fed.  22,  98  Bank  v.  Cole,  83  Ohio  St.  50,  93  N.  E. 

C.  C.  A.  8,  holding  that  the  general  465. 

rule    is    that    guaranties    are    per-  17.  Knowlton    v.    Hersey,    76    Me. 

spective  and  not  retrospective.  345. 

13.  Evansville  Nat.  Bank  v.  Kauf-  These  are  known  as  "  unlimited  " 
man,  93  N.  Y.  27;  Wheeler  v.  May-  guaranties.  Merchants'  National 
field,  31  Tex.  395.  Bank  v.  Cole,  83  Ohio  St.  50,  93  N.  E, 

14.  Peoria    Second    Nat.    Bank    v.  465. 
Diefendorf,   90   111.   396;    Mitchell  v. 
Railton,  45  Mo.  App.  27. 


351  GUAEANTY.  §    341 

default  and  reasonable  diligence  in  exhausting  reasonable  reme- 
dies against  the  principal.^'* 

§  341.  Consideration. — The  contract  of  guaranty  not  under 
seal  requires  a  consideration  to  support  it,  though  the  considera- 
tion need  not  be  in  money ;  so  a  consideration  may  arise  from  some 
injury  or  inconvenience  to  one  party,  or  from  some  benefit  to  the 
other/^  If  the  debt  of  the  principal  debtor  be  pre-existing,  then 
there  must  be  a  new  and  distinct  consideration  to  sustain  the 
promise  of  the  guarantor.  But  if  the  obligation  of  the  principal 
debtor  be  founded  upon  a  valuable  consideration,  and  after  it  was 
incurred,  or  before  that  time,  the  promise  of  the  guarantor  is 
made  and  entered  into  as  the  inducement  for  giving  the  guaranty, 
then  the  consideration  for  the  principal  debt  is  considered  as  a 
valuable  consideration  also  for  the  undertaking  of  the  guarantor.^** 
If  the  promise  is  in  the  nature  of  an  original  undertaking  to  pay 
a  debt  to  a  third  party  and  is  founded  upon  a  valuable  considera- 
tion received  by  the  promisor  himself,  it  is  sufficient.^^ 

The  letting  of  premises  by  the  owner  after  he  had  refused  ta 
let  them  unless  another  guaranteed  the  payment  of  the  rent  is  a 


18.  City  Bank  v.  Hopson,  53  Conn.  111.  Aipp.  548;   Hirsch  v.  Carpet  Co., 
453,  5  Atl.  601;  Beardsley  v.  Hawes,  82  111.  App.  234. 

71  Conn.  39,  40  Atl.  1043.  Kentuoky.— Case  Threshing  Mach. 

A  reply  in  writing  to  a  letter  ask-  Co.  v.  Patterson,  137  Ky.  180,  125  S. 

ing   for    a    guarantee    which    states  W.  287. 

that  the  writer  will  be  responsible  Massachusetts. — Bickford  v.  Gibbs, 

for    such    person    for    the    amount  8  Cush.  156. 

specified    is    an    absolute   guaranty.  Missouri. — Obert    Brewing    Co.    v. 

Acorn  Brass  Co.  v.  Gilmore,  142  111.  Wabash  R.  Co.,  145  Mo.  App.  30,  129 

App.  567.  S.  W.  991;  Adams  v.  Huggins,  78  Mo. 

Default  alone  binds  the  guarantor  App.  219. 
in    case    of    an    absolute    guaranty  New    Jersey.  —  Conover    v.    Still- 
while  in  case  of  a  conditional  guar-  well,  34  N.  J.  L.  54. 
anty  it  is  necessary  to  show  insol-  Wisconsin. — First    National    Bank 
vency    of    the    principal.       Pulaski  v.  Winnebago  County  A.  &  H.  Ass'n, 
Stave  Co.  v.  Millers'  Creek  Lumber  141  Wis.  476,  124  N.  W.  656. 
Co.,  138  Ky.  372,  128  S.  W.  96.  20.  Bassheans  v.  Rowe,  46  Mo.  54. 

19.  Florida.— Robinson  v.  Hyer,  35  21.  Wilson  v.  Bevans,  58  111.  232; 
Fla.  544,  17  So.  745.  Brown  v.  Brown,  47  Mo.  130;  Baker 

Illinois.— Richner  v.  Kreuter,  100  v.   Bradley,  42   N.  Y.  316;    Uhler  v. 

Bank,  64  Pa.  St.  406. 


§  341  Suretyship  and  Guaranty.  352 

siiflicient  consideration  for  the  latter's  guaranty,^"  as  is  also  ac- 
ceptance of  an  order  to  pay  money  and  ttie  payment  of  same/"  a 
loan  of  money ,^*  an  extension  of  credit/^  and  the  making  of  fur- 
ther advances  after  declining  to  do  so.^^ 

Extension  of  time  to  pay  the  debt  is  a  sufficient  consideration 
to  support  the  guaranty  of  a  stranger  of  the  payment  of  the  new- 
obligation.^^  So  a  forbearance  by  the  creditor  to  sue  the  principal 
dehor  for  a  debt  due  is  a  sufficient  consideration  to  support  the 
guaranty.^^  And  the  extension  of  time  for  the  performance  of 
an  agreement  or  for  the  payment  of  a  debt  forms  a  sufficient  con- 
sideration to  support  the  contract.^*  But  a  promise  to  forbear 
to  prosecute  a  claim  which  has  no  foundation  forms  no  considera- 
tion.^" An  agreement  to  withdraw  a  suit  against  the  principal  is 
a  sufficient  consideration.^^  The  promise  to  pay  the  debt  of  an- 
other in  consideration  of  forbearance  is  not  binding  unless  ac- 
cepted by  the  other  party.  There  must  be  a  mutual  agreement, 
the  consideration  being  a  promise  for  a  promise ;  both  parties 
must  be  bound.^^ 

The  promise  to  forbear  will  be  void  unless  it  provides  for  some 
actual  de]ay  and  affords  a  means  of  determination  of  how  long 
that  delay  is  to  continue,^^  because  a  promise  to  forbear  in  gen- 
eral, without  adding  any  particular  time,  is  to  be  understood  a 


22.  Garland  v.  Gaines,  73  Conn.  111.  209;  Fuller  v.  Scott,  8  Kan.  25; 
€62,  49  Atl.  19.  First  National  Bank  v.  Taylor  (Utah. 

23.  Republic  Mfg.  Co.  v.  Fuchs,  151  1911),  114  Pac.  529. 

111.  App.  260.  30.  Cabot     v.     Haskins,     3     Pick. 

24.  Lompoc  Valley  Bank  v.  Steph-  (Mass.)  83. 

enson,  156  Cal.  350,  104  Pac.  449.  Compare    Hamaker    v.    Eberly,    2 

25.  McDonald    v.    Tootle   Weakley  Binn.  (Pa.)   506. 

Millinery  Co.,  64  Neb.  577,  90  N.  W.  See  Bvllen  v.  Morrison,  98  111.  App. 

547.  669. 

26.  Moore  Lumber  Co.  v.  William-  31.  Worcester  Sav.  Bank  v.  Hill, 
Bon,  110  Va.  775,  67  S.  E.  S74.  113  Mass.  25;   Harris  v.  Vendbly,  L. 

27.  Faulkner    v.    Gilbert,    57    Neb.  R.  7  Exch.  235. 

544,  77  N.  W.  1072.  32.  Shupe  v.  Galbreathe,  32  Pa.  St. 

28.  Standard  Supply  Co.  v.  Finch,  19;  Clark  v.  Russel,  3  Watts.  (Pa) 
154  N.  C.  456,  70  S.  E.  745;  Alder-  213;  Snyder  v.  Leibengood,  4  Pa.  St. 
Bhaw  V.  King,  2  Hurl.  &  N.  517.  305;  Semple  v.  Pink,  1  Exch.  74. 

29.  McMicken  v.  Safford,  197  111.  33.  Filing  v.  Vanderlyn,  4  Johns. 
540,  64  N.  E.  540,  affirming  100  111.  Ch.  (N.  Y.)  237;  Shupe  v.  Galbreathe, 
App.  102;  Underwood  v.  Hossack,  38  32  Pa.  St.  19. 


a^'d  GUAHANTY.  §    342 

total  forbearance.^^  While  the  promise  to  pay  the  debt  of  an- 
other must  be  accepted  by  the  other  party  to  make  it  binding, 
yet  acts  of  the  creditor  may  show  that  he  has  relied  upon  the 
promise,  though  he  made  no  declaration  to  that  effect,  and  hence, 
the  promise  is  binding.^'' 

A  consideration  arising  from  some  injury  or  inconvenience  to 
one  party  or  from  some  benefit  to  the  other  is  recog-nized  a  legal 
consideration.  Thus,  if  A,  for  the  purpose  of  strengthening  the 
credit  of  B,  agrees  with  0  to  become  responsible  for  goods  to  be 
sold  in  the  future  by  C  to  B,  and  O  accepts  the  agreement  and 
acts  upon  it  by  selling  goods  to  B,  there  is  every  element  of  a  valid 
consideration,  because  C  has  parted  with  his  property  upon  the 
faith  of  A's  promise,  and  B,  at  A's  express  or  implied  request, 
has  obtained  a  benefit  by  means  of  such  promise.^''  There  must 
be  a  consideration ;"  a  seal  imports  a  consideration.^^ 

Although  it  is  a  general  rule  at  common  law,  a  seal  imports  a 
consideration,  yet  equity  disregards  such  form  and  looks  to  the 
reality,  and  requires  an  actual  consideration,  and  permits  the 
want  of  it  to  be  shown,  notwithstanding  the  seal.  If  at  common 
law  the  seal  imports  unimpeachable  consideration,  it  is  in  cases 
where  the  seal  is  itself  legally  affixed  in  the  first  instance,  and  not 
in  cases  of  forgery  or  without  any  lawful  authority.^' 

§  342.  Executory  Consider.ation. — As  a  general  rule  the  guar- 
anty of  a  pre-existing  debt  of  another  is  not  binding  on  the  guar- 

34.  Hamaker  v.  Eberly,  2  Binn.  13  N.  E.  10;  Train  v.  Gold,  5  Pick. 
(Pa.)  510;  Clark  v.  Russel,  3  Watts.    380. 

(Pa.)  213.  New  York.— Beakes  v.  Da  Cunha, 

35.  Downing    v.    Funk,    5    Rawle    126  N.  Y.  293,  27  N.  E.  351. 

(Pa.)  69;  Weaver  v.  Wood,  9  Pa,  St.  Utah. — Armstrong  v.  Cache  Valley 
220.  Land  &  Canal  Co.,  14  Utah  450,  48 

36.  Arkansas.— Williams    v.    Per-   Pac.  690. 

kins,  21  Ark.  18.  37.  Klein   v.   Currier,   14   111.   237; 

California. — McDougald  v.  Argon-  Tenney   v.   Prince,   4   Pick.    (Mass.) 

aut   Land   &   Improvement   Co.,   117  385;    Macfarland   v.    Heim,   127    Mo. 

Cal.  87,  48  Pac.  1021.  327,  29  S.  W.  1030. 

Florida.— Ferst    v.    Blackwell,    39  38.  Snyder's  Estate,  7  Kulp  (Pa.) 

Fla.  621,  22  So.  892.  409;  Antisdel  v.  Williamson,  37  App. 

Massachusetts.— Lennox    v.    Mur-  Div.  (N.  Y.)  167,  55  N.  Y.  Supp.  1028. 

phy,   171   Mass.   370,   50   N.   E.   644;  39.  Hale  v.  Dresser,  73  Minn.  277, 

Wellington  v.  Apthorp,  145  Mass.  69,  76  N.  W.  31. 

See  §§  344  et  seq. 
23 


§    342  SUKETYSIIIP  AND   GuAKANTY.  354r 

alitor  without  a  new  and  independent  consideration  to  support  it ; 
but  when  the  guaranty,  though  executed  after  the  debt  was  created, 
is  connected  with,  and  the  inducement  of,  the  original  credit  or 
the  result  of  a  previous  promise  by  the  guarantor,  upon  the  faith 
of  which  the  credit  was  obtained  by  the  original  debtor,  it  re- 
quires no  new  or  independent  consideration  to  render  it  valid, 
but  it  is  a  part  of  the  original  transaction  and  the  consideration 
upon  which  it  was  given.*" 

Where  the  guaranty  is  made  at  the  same  time  with  the  prin- 
cipal contract,  and  becomes  an  essential  ground  of  the  credit  given 
to  the  principal,  there  need  not  be  any  other  consideration  than 
that  moving  between  the  creditor  and  the  original  debtor  under 
the  principal  contract/^  In  such  case  the  guarantor's  contract  be- 
ing contemporaneous  with  the  principal  contract,  no  separate  con- 
sideration is  required,  as  the  consideration  of  the  principal  con- 
tract will  support  that  of  the  contract  of  guaranty.*^  And  where 
between  the  time  of  the  execution  of  the  original  contract  and  its 
delivery,  performance  thereof  is  guaranteed,  the  consideration  of 
the  original  contract  will  support  the  contract  of  guaranty/^  But 
where  the  guaranty  is  made  subsequent  to  the  creation  of  the  debt 
and  was  not  an  inducement  to  it,  the  consideration  of  the  original 
debt  will  not  support  it,  so  there  must  be  some  further  considera- 

4:0.  Illinois. — Laingor    v.    Lowen-  Missouri. — Glenn    v.    Lehnen,    54 

thai,  151  111.  App.  599.  Mo.  45. 

Maine. — Gillingham  v.   Boardman,  New  York. — "Wood  v.  Tunnicliff,  74 

29  Me.  79.  N.  Y.  38. 

Mississippi. — Standley  v.  Adames,  42.  Chicago  Sash,  Door  &  Blind 
36  Miss.  434.  Mfg.  Co.  v.  Haven,  195  111.  474,  63  N. 

New    York.  —  McNaught    v.    Mc-    E.    158,    affirming    96    111.    App.    92 
Claughry,  42  N.  Y.  22.  Bullen  v.  Morrison,  98  111.  App.  669 

Pennsylvania,  —  Pam    v.     Stack-    Duncauson  v.  Kirtz,  90  111.  App.  15 
house,  38  Pa.  St.  302.  Cahill  Iron  Works  v.  Pemberton,  48 

41.  Illinois.— Dillman  v.  Nadel-  App.  Div.  (N.  Y.)  468,  62  N.  Y.  Supp. 
hoffa,  160  111.  121,  43  N.  E.  378.  944,  affirmed  168  N.  Y.  649,  61  N.  E. 

Kansas.— Winans  v.  Gibbs  &  Stan-    1128. 
ett  Cable  Mfg.,  etc.,  Co.,  48  Kan.  777,       As  to  consideration  for  contracts 

30  Pac.  163.  of  suretyship,  see  §§  35  et  seq.  here- 
Massachnsetts. — Lennox    v.    Mur-   in. 

phy,  171  Mass.  370,  50  N.  E.  644.  43.  Providence  Mach.  Co.  v.  Brown- 

Minnesota.— Osborne  &  Co.  V.  Gul-  ing,  68  S.  C.  89,  46  S.  E.  550;  Foles  & 
likson,  64  Minn.  218,  66  N.  W.  965.       Jenks  Mach.  Co.  v.  Browning,  68  S. 

C.  13,  46  S.  E.  545. 


355  GuAEANTY.  §§  343,345 

tion  having  an  immediate  respect  to  such  liability;^*  and  it  is 
sufficient  that  there  be  something  moving  toward  the  principal 
debtor.  ^^ 

§  343.  Moral  Obligation. — The  promise  to  pay  the  debt  of 
another,  based  upon  a  moral  obligation,  is  invalid.  Thus,  the 
fact  that  goods  were  bought  for  the  use  of  a  certain  person,  does 
not  afford  a  moral  obligation  as  will  support  his  parol  promise 
to  pay  for  them,  where  he  is  under  no  legal  obligation  to  pay  for 
the  same,  and  no  arrangement  is  made  for  discharging  the  pri- 
mary debtor,^®  because  an  express  promise  can  only  revive  a  pre- 
cedent valid  consideration  which  might  have  been  enforced  at  law, 
through  the  medium  of  an  implied  promise,  had  it  not  been  sus- 
pended by  some  positive  rule  of  law,  but  it  can  give  no  original 
right  of  action  if  the  obligation  on  which  it  was  founded  never 
could  have  been  enforced  at  law,  though  not  barred  by  legal  maxim 
or  statute  provision.*^ 

A  moral  obligation  will  not  support  a  voluntary  written  guar- 
anty, unless  there  was  once  a  legal  consideration.^^ 

§  344.     As  to  Consideration,  Guaranties  are  of  Tv^^o  Kinds. — 

Guaranties  may  be  classified  as  follows:  (1)  Where  the  consider- 
ation passes  wholly  at  one  time;  such  are  not  terminated  by  death. 
( 2 )  Where  the  consideration  passes  at  different  times  and  is  separ- 
able ;  such  are  revocable,  and  are  terminated  by  death  and  notice 
of  death.^» 

§  345.     Guaranties   Where   the    Consideration   is    Entire. — In 

this  class  of  guaranties  the  consideration  is  entire,  and  passes 
wholly  at  one  time:  Thus,  where  a  person  enters  into  a  guar- 
anty that,  in  consideration  of  the  lessor  granting  a  lease  to  a  third 

44.  Parkhurst  v.  Vail,  73  111.  343;        47.  Wennall  v.  Adney,  3  Bos.  &  P. 
Briggs   V.   Latham,   36   Kan.   205,   13    247,  253,  note. 

Pac.    129;    Peck   v.    Harris,    57   Mo.  48.  Martin's    Estate,    131    Pa.    St. 

App.  467;  Draper  v.  Snow,  20  N.  Y.  638,  18  Atl.  987;  Paul  v.  Stackhouse, 

331.  38  Pa.  St.  302. 

45.  Bickford    v.     Gibbs,     8     Cush.  49.  National  Eagle  Bank  v.  Hunt, 
(Mass.)    156;    Dahlman   v.  Hammel,  16  R.  I.  148,  13  Atl.  115. 

45  Wis.  466.  See  §  346. 

46.  Hendricks     v.     Robinson,     56 
Miss.  695. 


§  346  Suretyship  and  Guaranty.  356 

person,  ho  will  be  answerable  for  the  performance  of  the  coven- 
ants, the  moment  the  lease  is  granted,  there  is  nothing  more  for 
the  lessor  to  do;  and  such  guaranty  as  that  of  necessity  runs 
throughout  the  duration  of  the  lease.  The  lease  is  intended  to  be 
a  guarantied  lease  and  it  is  impossible  to  say  that  the  guarantor 
could  put  an  end  to  the  grant  at  his  pleasure,  or  that  it  could  be 
put  an  end  to  by  his  death  contrary  to  the  intention  of  the  par- 
ties.^'' And  of  course  if  the  guarantor  dies  his  estate  is  responsible 
for  the  defaults  of  his  principal.  So  where  a  party,  in  considera- 
tion that  an  employer  would  take  into  his  service  a  certain  indi- 
vidual as  collector  and  clerk  in  a  responsible  position,  would  be 
answerable  for  the  fidelity  of  the  employee  so  long  as  he  con- 
tinued in  that  service,  such  guaranty  cannot  be  put  an  end  to  so 
long  as  the  service  continues.  The  consideration  is  admitting  the 
employee  into  the  service  of  the  employer  in  that  capacity,  and 
that  being  done,  it  becomes  a  guarantied  service  so  long  as  the 
clerk,  or  employee,  remains  in  that  position.  The  guaranty,  there- 
fore, necessarily  continues  until  tlie  service  is  ended."^  In  this 
class  of  cases,  the  consideration  passes  entire  at  the  time,  and  is 
not  therefore  severable.^^ 

§  346,  Guaranty  Vvhere  the  Consideration  Passes  at  Differ- 
«ent  Times  and  is  Separable. — In  this  class  of  cases  the  considera- 
tion passes  at  different  times,  and  is  therefore  separable  or  di- 
visible. Such  guaranty  may  be  revoked  as  to  subsequent  transac- 
tions by  the  guarantor  upon  notice  to  that  effect,  and  it  determines 
by  his  death  and  notice  of  that  event.^  These  cases  are  generally 
where  a  guaranty  is  given  to  secure  the  balance  of  a  running  ac- 
count at  a  bank,  or  the  balance  of  u  money  account  for  goods  sup- 

50.  Lloyds  v.  Harper,  16  Ch.  D.  New  York. — Kernochan  v.  Murray, 
290.  Ill  N.  Y.  306,  18  N.  E.  686;  Hall  v. 

51.  Calvert  v.  Gordon,  3  Man.  &  Ochs,  34  App.  Div.  103,  54  N.  Y. 
Ry.  124.  Supp.  4. 

52.  Alabama. — Moore  v.  Wallis,  18  53.  Menard  v.  Scudder,  7  La.  Ann. 
Ala.  458.  385;    Hyland    v.    Habich,    150    Mass. 

Illinois.— Rapp  v.  Ins.  Co.,  113  111.  112,  22  N.  B.  765;  Jordan  v.  Dob- 
390.  .    bins,  122  Mass.  168;   National  Eagle 

Iowa.— Royal  Ins.  Co.  v.  Davies,  40  Bank  v.  Hunt,  16  R.  I.  148,  13  Atl. 
Iowa  469.  115;  Offord  v.  Davies,  12  C.  B.  (N.  S.) 

Jffaine. — Green  v.  Young,  8  Me.  14.    748;   Coulthart  v.  Clementson,  5  Q. 

B.  Div.  42. 


357  GUAEANTY.  §    a-iT 

plied.  In  these  cases  the  consideration  is  supplied  from  time  to 
time,  and  it  is  reasonable  to  hold,  unless  the  guaranty  stipulates 
to  the  contrary,  that  the  guarantor  may  at  any  time  terminate  the 
guaranty.  He  remains  answerable  for  all  the  advances  made 
or  of  goods  supplied  upon  his  guaranty  before  notice  to  terminate 
it  is  given.  A  notice  of  the  death  of  the  guarantor  is  notice  to 
terminate  the  guaranty,  and  has  the  same  effect  as  a  notice  given 
in  the  lifetime  of  the  guarantor  that  he  w^ould  put  an  end  to  it.^* 
In  England  such  guaranty  is  terminated,  not  by  the  death  of  the 
guarantor,  but  by  notice  of  his  death.^^  But  in  the  United  States 
the  death  of  the  guarantor  operates  as  a  revocation  of  it,  and  the 
person  holding  it  cannot  recover  against  his  executor  or  adminis- 
trator for  goods  sold  after  his  death.^^ 

§  347.     Indorsement   Before   and   After   Delivery   of   Note. — 

The  statute  often  gives  the  status  of  a  party  signing  a  note  be- 
fore and  after  delivery.  In  Missouri  a  third  party  who  indorses 
a  note  after  delivery  to  the  payee  becomes  a  guarantor.^^  But  a 
party  contracting  to  assume  the  liability  of  an  indorser,  cannot 
be  held  as  a  guarantor. ^^ 

If  he  indorses  before  delivery  to  the  payee,  the  presumption  is 
that  he  assumed  the  liability  of  a  guarantor,  which  may  be  re- 
butted by  proof  that  the  agreement  between  the  parties  was  differ- 
ent,^^ as  between  the  original  parties,  the  payee  still  holding  the 
note.^° 

54.  Harris  v.  Fawcett,  L.  R.  15  Eq.  National  Eagle  Bank  v.  Hunt,  16 
311;   Coulthart  v.  Clementson,  5  Q.    R.  I.  148,  13  Atl.  115. 

B.  D.  42.  57.  Adams  v.  Huggins,  73  Mo.  App. 

Compare   Bradbury  v.   Morgan,   1  140. 

H.  &  C.  249,  decision  questioned  in  As  to   indorsing  note  before  and 

Harris  v.  Fawcett,  L.  R.  15  Eq.  311,  after  delivery;    contracts  of  surety- 

313,  8  Ch.  App.  866,  and  was  not  re-  ship,  see  §  36  herein, 

garded  in  Coulthart  v.  Clementson,  58.  Tatum  v.  Brown,  23  Miss.  760; 

5  Q.  B.  D.  42.  Russell  v.  Clarke,  7  Cranch  69,  3  L. 

55.  Coulthart  v.  Clementson,  5  Q.  Ed.  271. 

B.  D.  42,  47;  Lloyd  v.  Harper,  16  Ch.  59.  Eberhart  v.  Page,  89  111.  550. 

D.  290,  314.  60.  Milligan  v.   Holbrook,   168   HI. 

56.  Jordan  v.  Dobbins,  122  Mass.  343,  48  N.  E.  157;  De  Witt  County 
168;  Hyland  v.  Habich,  150  Mass.  Nat.  Bank  v.  Nixon,  125  HI.  615,  18 
112,  22  N.  E.  765;   Aitken  v.  Lang's  N.  E.  203. 

Adm'r,   106   Ky.   652,  51   S.  W.   154; 


§  347 


Suretyship  and  Guaranty. 


358 


But  the  decisions  upon  this  subject  are  unreconcilable.  The 
United  States  Supreme  Court  holds  that  when  a  promissor)'  note 
made  payable  to  a  particular  party  or  order,  is  first  indorsed 
by  a  third  person,  that  is,  before  indorsed  by  the  payee,  such  an 
indorser  is  an  original  promisor,  guarantor,  or  indorser,  accord- 
ing to  the  nature  of  the  transaction  and  the  understanding  of  the 
parties.*^^ 

In  many  of  the  States  such  indorser  is  held  prima  facie  liable 
as  a  guarantor. ^^  Other  courts  hold  that  such  indorser  is  pre- 
sumably a  second  indorser,  because  in  the  absence  of  evidence  to 
the  contrary  the  indorsement  is  for  the  accommodation  of  the 
payee,  and  is  a  second  indorsement  requiring  the  indorsement  of 
the  payee  to  make  it  operative.^^  Still  other  courts  hold  that  such 
indorser  is  prima  facie  liable  as  joint  maker  or  surety.^ 

Many  cases  affirm  the  rule  that  if  one  not  the  payee  indorses 
his  name  in  blank  on  a  negotiable  note  before  it  is  indorsed  by 


61.  Rey  v.  Simpson,  22  How.  341, 
16  L.  Ed.  260;  Good  v.  Martin,  95  U. 
S.  90,  24  L.  Ed.  341. 

62.  f'alifornia.— Crooks  v.  Tully,  50 
Cal.  673. 

Connecticut. — Clark  v.  Merriam, 
25  Conn.  576. 

Illinois. — Stowall  v.  Raymond,  83 
111.  120;  Lincoln  v.  Hinsey,  51  111. 
437;  Milligan  v.  Holbrook,  168  111. 
343,  48  N.  E.  157. 

Iowa. — Knight  v.  Dunsmore,  12 
Iowa  35. 

Kansas. — Fuller  v.  Scott,  8  Kan. 
32. 

Kentucky. — Arnold  v.  Bryant,  8 
Bush  668. 

Minnesota. — Peterson  v.  Russell, 
62  Minn.  220,  64  N.  W.  555;  Osborne 
&  Co.  V.  Gullikson,  64  Minn.  218,  66 
N.  W.  965. 

Ohio. — Seymour  v.  Mickey,  15 
Ohio  St.  515. 

Texas.— Chandler  v.  Westfall,  3 
Tex.  477. 

Yirginia. — Orrick  v.  Colston,  7 
Gratt.  (Va.)  189. 


63.  Browning  v.  Merritt,  61  Ind. 
425;  Phelps  v.  Vischer,  50  N.  Y.  74; 
Coulter  V.  Richmond,  59  N.  Y.  478; 
Moore  v.  Cross,  19  N.  Y.  27;  Arnott 
V.  Symonds,  85  Pa.  St.  99;  Cady  v. 
Shepard,  12  Wis.  639. 

64.  United  States.— Good  v.  Mar- 
tin. 95  U.  S.  90,  24  L.  Ed.  341. 

Arkansas. — Nathan  v.  Sloan,  34 
Ark.  524. 

Colorado. — Good  v.  Martin,  2  Colo. 
218;   Leonard  v.  Wilder,  36  Me.  265. 

Maryland.— Schley  v.  Merritt,  37 
Md.  352. 

Massachusetts. — Spaulding  v.  Put- 
nam, 128  Mass.  363. 

North  Carolina. — Baker  v.  Robin- 
son, 63  N.  C.  191. 

Oregon. — Barr  v.  Mitchell,  7  Ore. 
346. 

Tennessee. — Logan  v.  Ogden,  101 
Tenn.  392,  47  S.  W.  489. 

Rhode  Island. — Atwood  v.  Lester, 
20  R.  I.  660;  Perkins  v.  Barstow,  9 
R.  I.  907. 

Torniont. — Sylvester  v.  Downer, 
20  Vt.  355. 


359  Guaranty.  §  347 

the  payee,  and  before  it  is  delivered  to  take  effect  as  a  promissory 
note,  it  might  be  presumed  that  he  intended  to  give  it  credit  by 
becoming  liable  to  pay  it,  either  as  a  guarantor  or  as  an  original 
promisor.''^  If  the  contract  of  indorsement  was  made  at  the  in- 
ception of  the  note,  it  is  presumed  to  have  been  made  for  the  same 
consideration  and  a  part  of  the  original  contract  expressed  by 
the  note.  If  made  subsequently  to  the  date  of  the  note  and  with- 
out the  prior  indorsement  by  the  payee,  it  will  be  presumed  that 
it  was  not  made  for  the  same  consideration,  and  the  party,  if 
liable  at  all,  will  be  regarded  as  a  guarantor,  and  such  contract  of 
guaranty  of  a  debt  of  a  third  person  must  be  in  writing,  and  there 
must  be  a  sufficient  proof  of  the  consideration/''  This  is  the  rule 
where  the  third  party  indorses  the  note  before  the  payee.  But 
where  a  third  person  indorses  the  note  after  a  prior  indorse- 
ment by  the  payee,  the  law  presumes  it  to  have  been  done  in  aid 
of  the  negotiation  of  the  note,  and  the  party  may  be  regarded  as 
a  subsequent  indorser,  the  rule  being  that  if  the  indorsement  is 
without  date  it  will  be  presumed  to  have  been  made  at  the  incep- 
tion of  the  note.*^ 

And  it  is  further  held  that  in  the  irregularities  in  the  execu- 
tion of  a  promissory  note  the  maker  and  such  indorser  are  both  to 
be  deemed  original  promisors,  and  the  note  a  joint  and  several 
promissory  note  to  the  payee,  although  as  between  the  maker  and 
the  third  party,  they  stand  in  the  relation  of  principal  and  surety.^* 
This  rule  should  be  applied  where  the  third  party  indorses  his 
name  in  blank  on  the  note  at  the  time  when  it  was  made  and  be- 
fore it  was  indorsed  by  the  payee.  But  the  rule  may  be  otherwise 
if  the  party  actually  wrote  his  name  at  a  subsequent  period,  un- 
less it  was  done  in  compliance  with  an  agreement  made  before  the 
note  was  executed. ^^ 

The  rule  undoubtedly  should  be,  that  where  a  promissory  note 

65.  Colburn  v.  Averill,  30  Me.  310;  (Mass.)  309;  Noxon  v.  De  Wolf,  10 
Bryant  v.  Eastman,  7  Cush.  Ill;  Gray  (Mass.)  43;  Crllins  v.  Gilbert, 
Benthal  v.  Judkins,  13  Met.  265.  94  U.  S.  753,  24  L.  Ed.  170. 

66.  Brjwster   v.    Silence,   8   N.   Y.  68.  Lewis  v.  Harvey,  18  Mo.  746; 
207;     Leonard     v.     Vredenburg,     8  Sylvester  v.  Downer,  20  Vt.  355. 
Johns.  (N.  Y.)  29;  Hall  v.  Farmer,  5  69.  Leonard  v.  Wilder,  36  Me.  265; 
Denio  (N.  Y.)  484.  Hawkes  v.  Phillips,  7  Gray   (Mass.) 

67.  Ranger     v.     Carey,     1     Met.    284;    Champion   v.   Griffith,   13  Ohio 

228. 


§  348  Suretyship  and  Guaranty.  360 

is  made  payable  to  a  particular  person  or  order,  and  is  first  in- 
dorsed by  a  third  person,  such  third  person  should  be  regarded 
as  an  original  promisor,  guarantor,  or  indorser,  according  to  the 
nature  of  the  transaction  and  the  understanding  of  the  parties  at 
the  time  the  transaction  took  place,  when  the  statute  does  not  give 
the  status  of  the  third  party. 

If  a  person  puts  his  name  in  blank  on  the  back  of  a  note  at  the 
time  it  was  made,  and  before  it  was  indorsed  by  the  payee,  to 
give  the  maker  credit  with  the  payee,  or  if  he  participated  in  the 
consideration  of  the  note,  he  must  be  considered  as  a  joint  maker 
of  the  note,^"  when  not  controlled  by  statute.  But  if  the  indorse- 
ment was  subsequent  to  the  making  of  the  note  and  to  the  delivery 
of  the  same  to  take  effect,  and  a  third  person  puts  his  name  on  the 
back  of  the  note  at  the  request  of  the  maker,  pursuant  to  a  con- 
tract of  the  maker  with  the  payee  for  further  indulgence  or  for- 
bearance, he  can  only  be  held  as  a  guarantor  where  there  is  legal 
proof  of  consideration  for  the  promise,  unless  it  is  shown  that  he 
was  connected  with  the  inception  of  the  note.  But  if  the  note 
was  intended  for  discount,  and  he  indorses  it  with  the  under- 
standing of  all  the  parties  that  his  indorsement  should  be  inop- 
erative until  the  instrument  was  indorsed  by  the  payee,  he  would 
then  be  liable  only  as  a  second  indorser,  in  the  commercial  sense, 
and  as  such  would  clearly  be  entitled  to  the  privileges  which  be- 
long to  such  an  indorser. 

In  the  interpretation  of  the  contract,  whether  the  party  so  in- 
dorsing is  an  original  promisor,  guarantor,  or  indorser,  the  inter- 
pretation ought  to  be  such  as  will  carry  into  effect  the  intention 
of  the  parties,  and  proof  of  facts  and  circumstances  which  took 
place  at  the  time  of  the  transaction  should  be  admissible  to  aid  in 
the  interpretation  of  the  language  employed.^^ 

§  348.  Offer  and  Acceptance. — When  notice  should  be  given 
as  to  acceptance  of  an  offer  of  guaranty,  it  is  of  importance  in 
reference  to  the  liability  of  the  guarantor.     When  an  instrument 

70.  Lewis  v.  Harvey,  18  Mo.  746;  Leek,  12  Wend.  (N.  Y.)  105;  ClaytOtt 
Sylvester  v.  Downer,  20  Vt.  355.  v.  Grayson,  4  Nev.  &  M.  602;  Dentom 

71.  Cavazos  v.  Tre^^ne,  6  Wall.  (U.  v.  Peters,  L.  R.  5  Q.  B.  475;  Shora 
S.)    773,  18  L.  Ed.  813;    Hopkins  v.  v.  Wilson.  9  CI.  &  F.  352. 

See  §  36. 


361  Guaranty.  §  348 

in  writing  resolves  itself  into  a  promise  or  undertaking  on  the 
part  of  the  person  executing,  to  do  a  particular  thing  which  an- 
other is  bound  to  do,  in  the  event  such  other  person  does  not  per- 
form the  act  himself,  it  is  an  original  undertaking,  and  not  a  col- 
lateral guaranty ;  it  is  in  the  nature  of  suretyship,  and  the  person 
bound  by  it  must  take  notice  of  the  default  of  the  principal.^"  In 
a  strict  guaranty,  the  guarantor  does  not  undertake  to  do  what 
the  principal  is  bound  to  do,  but  he  undertakes,  in  the  event  of 
the  principal's  failure,  to  do  what  he  has  promised,  to  pay  dam- 
ages for  such  failure.  The  guarantor  promises  to  pay  such  dam- 
ages as  result  from  the  principal's  default.  A  surety  undertakes 
to  do  a  particular  thing  if  the  principal  does  fail." 

The  contract  of  guaranty  is  his  own  separate  undertaking,  in 
which  the  principal  does  not  join,  and  is  not  a  joint  engagement 
with  his  principal.^*  Where  the  guaranty  is  for  the  fulfillment 
of  a  contract  already  made,  or  for  one  executed  contemporaneously 
with  the  contract  of  guaranty,  or  for  the  payment  of  an  existing 
debt,  or  where  the  contract  of  guaranty  is  upon  a  consideration 
distinct  from  the  credit  extended  to  the  principal  debtor,  and 
which  moves  directly  between  guarantor  and  guarantee,  notice  of 
acceptance  is  not  necessary.  In  such  cases  the  acceptance  of  the 
guaranty  and  the  performance  of  the  consideration  upon  which 
it  rests  makes  the  contract  complete  and  enforceable.^^ 

The  rule  requiring  notice  by  the  guarantee  of  his  acceptance 
of  a  guaranty  and  his  intention  to  act  under  it,  applies  only  where 
the  instrument  in  legal  effect  is  merely  an  offer  or  proposal ;  then 
notice  of  such  acceptance  is  necessary. ^^    And  where  agents  of  the 

72.  Furst  &  Bradley  Mfg.  Co.  v.  Georgria. — Barnes  Cycle  Co.  v. 
Black,  111  Ind.  308,  n  N.  E.  r.04,  Schofield,  111  Ga.  880,  36  S.  E.  965. 
Riddle  V.  Thompson,  104  Pa.  St.  330;  Illinois.— Cooke  v.  Orne,  37  111. 
Woods  V.  Sherman,  7J    Pa.  St.  100;  186. 

Relgart  v.  White,  52  Pa.  St.  438.  Indiana.— Closson  v.  Billman,  161 

As  to  notice  of  default  see  §  144a.  Ind.  610,  69  N.  E.  449. 

73.  Nading  v.  McGregor,  121  Ind.  Iowa. — German  Savings  Bank  v. 
465,  23  N.  E.  283.  Drake  Roofing  Co.,  112  Iowa  184,  83' 

74.  Davis    Sewing    Mach.    Co.    v.  N.  W.  960,  51  L.  R.  A.  758. 
Richards,  115  U.  S.  524,  6  Sup.  Ct.  Massachusetts.     —     Cumberland 
173,   29  L.   Ed.   480;    Shore  v.   Law-  Glass  Mfg.  Co.  v.  Wheaton,  208  Mass. 
rence,  68  W.  Va.  220,  69  S.  E.  791.  425,  94  N.  E.  803. 

75.  United  States.— Davis  v.  Wells,  76.  United  states.  —  Davis  v. 
104  U.  S.  159,  26  L.  Ed.  686.  Wells,  104  U.  S.  159,  26  L.  Ed.  686. 


§    348  .SUKETYSIIIP  AND  GUARANTY.  362 

creditor  made  a  proposition  to  the  debtor  and  to  the  defendants 
which  the  latter  accepted  and  guaranteed  the  payment  of  the 
debt,  notice  by  the  creditor  of  the  acceptance  of  the  guaranty  was 
held  to  be  unnecessary."  But  in  the  case  of  an  absolute  guaranty, 
and  not  a  mere  oiler  of  guaranty,  notice  of  acceptance  by  the 
guarantee  is  not  necessary.^^    Ordinarily  there  is  occasion  to  notify 

Delaware. — Wanamaker   v.   Benn,  anty  or  a  delivery  of  goods  in  re- 

3  Penn.  188,  50  Atl.  512.  liance  upon  the  guarantor.     Rowell 

Illinois. — Fielel   v.   Marsh,   85   111.  Mfg.    Co.    v.    Isaacs,    144    Mo.    App. 

App.  164;  Sears  v.  Swift,  66  111.  App.  58,  128  S.  W.  760. 

496.  An  acknowledgment  by  letter  of 

Massaclmsetts,  —  Cumberland  an  offer  to  guarantee  an  account 
Glass  Mfg.  Co.  V.  Wheaton,  208  of  a  certain  person  together  with  a 
Mass.  425,  94  N.  E.  803.  tender  of  thanks  for  the  same  con- 
Missouri. — People's  Bank  v.  Stew-  stitutes'  an  acceptance  of  such  guar- 
art,  152  Mo.  App.  314,  133  S.  W.  70;  anty.  Acorn  Brass  Mfg.  Co.  v.  Gil- 
Rouell  Mfg.  Co.  V.  Isaacs  (Mo.  App.  more,  142  111.  App.  567. 
1910),  128  S.  W.  760;  Deere  Plow  77.  Stewart,  Gwynne  &  Co.  v. 
Co.  V.  McCullough,  102  Mo.  App.  458,  Sharp  County  Bank,  71  Ark.  585,  76 
76  S.  W.  716;   Peninsular  Stove  Co.  S.  W.  1064. 

V.    Adams   Hardware   &   Furn.    Co.,  78.  United   States. — Bond   v.   Far- 

93  Mo.  App.  237.  well  Co.,  172  Fed.  58,  96  C.  C.  A.  546. 

New   York. — Lamb    v.   Carley,   35  Connecticut — New   Haven   Co.   v. 

App.  Div.  503,  54  N.  Y.  Supp.  804.  Mitchell,  15  Conn.  206. 

South  Carolina.— Mott  Iron  Works  Florida.— Ferst   v.    Blackwell,    39 

V.   Clark,  87   So.   Car.   199,  69   S.  E.  Fla.  621. 

227.  Georgia. — Sheppard  v.  Daniel  Mil- 

Wasliington.— Bank  of  California,  ler  Co.,  7  Ga.  App.  760,  68  S.  E.  451; 

V.  Union  Packing  Co.,  60  Wash.  456,  Sheffield  v.  Whitfield,  6  Ga.  App.  762, 

111  Pac.  573.  65  S.  E.  807. 

Compare  Sheffield  v.  Whitfield,  6  Illinois. — Acorn  Brass  Mfg.  Co.  v. 

Ga.  App.  762,  65  S.  E.  807.  Gilmore,  142  111.  App.  567;   Sears  v. 

Notice     of    acceptance     may     be  Swift,   66   111.  App.   496;    Neagle  v. 

waived.      Swishar    v.    Deering,    104  Sprague,  63  111.  App.  25. 

111.  App.  572.  Indiana,— Wright   v.    Griffith,    121 

Contract      subject     to     approval.  Ind.    478,   23    N.   E.   281;    Bryant   v. 

Where  a  contract  to  sell  goods  em-  Stout,  16  Ind.  App.  380,  44  N.  E.  68, 

bodied  a  guaranty  and  the  contract  45  N.  E.  343;   Jackson  v.  Yandes,  7 

contained  a  clause  that  it  was  "  sub-  Blackf.  536. 

ject  to  the  approval "  of  the  seller  Iowa. — McKee     v.     Needles,     123 

it  was  held  the  guarantor  was  not  Iowa    195,   98   N.   W.    618;    Case   v. 

bound    in   the   absence   of   evidence  Howard,  41  Iowa  479. 

showing    notice    of    acceptance    of  Kansas. — Platter     v.     Green,     26 

the  contract,  or  knowledge  of  guar-  Kan.  252. 

antor  of  the  acceptance  of  his  guar-  Kentucky. — Watkins    Medical    Co. 


363  GuAaANTY.  §  348 

the  guarantor  of  the  acceptance  of  an  offer  of  guaranty,  for  doing 
of  the  act  specified  in  the  offer  is  a  sufficient  acceptance.  But 
when  the  guarantor  would  not  know  of  himself  from  the  nature 
of  the  transaction  whether  the  offer  had  been  accepted  or  not, 
he  is  not  bound  without  reasonable  notice  of  the  acceptance  sea- 
sonably given  after  the  performance  which  constitutes  the  con- 
sideration.'^ And  it  is  held  that  notice  is  not  necessary,  even  if 
the  guaranty  is  made  at  the  request  of  the  guarantee,^"  though 
other  courts  hold  that  notice  of  acceptance  is  necessary  in  such 
cases. 

Guaranties  of  performance  and  payment  are  absolute  and  not 

V.    Brand,    143   Ky.    468,    136    S.   W.  79.  Sears    v.    Swift,    66    111.    App. 

867.  496;    Lascelles   v.   Clark,   204   Mass. 

Maine.— Howe  v.  Nickeles,  22  Me.  362,  90  N.  B.  875;   Bishop  v.  Eaton, 

175  161  Mass.  496,  37  N.  E.  665;  Babcock 

Massachusetts. — Bishop   v.  Eaton,  v.  Bryant,  12  Pick.   (Mass.)   133. 

161  Mass.  496,  37  N.  E.  665;   Paige  When   acted  upon   the   guarantee 

V.  Parka,  8  Gray  211.  becomes  binding.    Acorn  Brass  Mfg. 

Michigan. — Crittenden  v.  Fiske,  46  Co.    v.   Gilmore,    142    111.   App.    567. 

Mich.  70,  8  N.  W.  714.  So  where  an  extension  of  credit  is 

Missouri. — Peoples'  Bank  v.  Stew-  contemplated   and   given,   notice   of 

art,  152  Mo.  App.  314,  133  S.  W.  70;  acceptance   is   held   to   be   unneces- 

Globe  Printing  Co.  v.  Bickle,  73  Mo.  sary.      Sheppard    v.    Daniel    Miller 

App.  499.  Co.,   7   Ga.  App.   760,   68   S.   E.   451; 

Nebraska,— Standard    Oil    Co.    v.  Sheffield    v.    Whitfield,    6    Ga.    App. 

Hoese,  57  Neb.  665,  78  N.  W.  292.  762,  65  S.  B.  807.     And  a  sale  and 

New    Hampshire — Bank    v.    Sin-  delivery  of  goods  in  reliance  upon  a 

Clair,  60  N.  H.  100.  guaranty   is  held  sufficient  to  bind 

New  York. — Smith  v.  Dann,  6  Hill  the    guarantor.      Bond    v.    Farwell 

543;  Douglass  V.  Howland,  24  Wend.  Co.,   172(  Fed.   58,   96   C.   C.   A.   546; 

35.  Desgranges    v.    Newhauer,    149    Mo. 

Ohio. — Powers    v.    Bumcratz,    12  App.  715,  129  S.  W.  759. 

Ohio  St.  293.  80.  Davis  v.  Wells,  104  U.  S.  159, 

PennsylTania.— Evans    v.    McCor-  26  L.  Ed.  686;   Davis  Sewing  Mach. 

mick,  167  Pa.  St.  247,  31  Atl.  563.  Co.  v.  Richards,  115  U.  S.  524,  6  Sup. 

Texas. — Lemp     v.     Armengol,     86  Ct.  173,  29  L.  Ed.  480. 

Tex.  690,  26  S.  W.  941;  Hill  Mercan-  81.  Evans  v.  McCormick,  167  Pa. 

tile  Co.  V.  Rotan  Grocery  Co.   (Tex.  St.    247,    31    Atl.    563;     Gardner    v. 

Civ.  App.  1910),  127  S.  W.  180.  Lloyd,   110   Pa.   St.  278,  2  Atl.   562; 

Vermont— Maynar.d   v.  Morse,   36  Kay  v.  Allen,  9  Pa.  St.  320. 

Vt.   617.  See  German   Sav.  Bank  v.   Drake 

Washington. — Bank   of  California  Roofing  Co.,  112  Iowa  184,  83  N.  W. 

V.  Union  Packing  Co.,  60  Wash.  456,  960,   51    L.    R.    A.    758,    51    Cent.    L. 

Ill  Pac.  573.  Journal,  428,  and  note. 


§    348  SUKETYSIIIP   AND  GuABANTY.  3(34r 

collateral.  Unlike  the  contract  of  an  indorser,  there  is  no  con- 
dition as  to  demand  and  notice  of  default  annexed  to  a  contract 
of  guaranty  of  payment  or  of  performance.  Such  a  guaranty  is 
an  absolute  promise  that  the  principal  will  perform  in  accordance 
with  the  provisions  of  his  contract.  It  is  the  business  of  the 
guarantor  to  inform  himself  as  to  the  conduct  of  the  principal. 
There  is  some  conflict  to  this  doctrine,  but  it  is  the  true  rule,  be- 
cause the  guarantor  makes  an  absolute  promise  that  a  particular 
thing  shall  be  done,  and  thereby  assumes  an  active,  absolute  duty 
to  see  that  it  is  done  and  must,  at  his  peril,  perform  the  promise. 
And  while  the  guarantee,  from  his  situation,  possesses  better 
means  of  knowing  of  the  default  of  the  principal  than  the  guar- 
antor, yet  the  latter  has  ample  means  of  knowing  the  facts,  and 
must  inform  himself  and  not  rely  upon  the  guarantee,  who  owes 
no  duty  to  the  guarantor  except  to  act  in  the  utmost  good  faith, 
and  not  be  guilty  of  laches  to  the  guarantor's  injury.^^ 

In  an  absolute  guaranty,  notice  of  default  is  not  necessary  to 
be  given  to  the  guarantor  to  hold  him  liable.^^  But  when  the  in- 
strument is  merely  an  offer  or  a  proposition,  then  notice  of  the 
acceptance  of  the  guaranty  is  necessary.*'*  Suit  is  not  necessary 
in  any  jurisdiction  against  the  principal  debtor,  when  the  guar- 
anty is  absolute,  in  order  to  fix  the  liability  of  the  guarantor.*^ 

82.  Heyman  v.  Dooley,  77  Md.  162,  IVew  York.— City  Nat.  Bank  v. 
26  Atl.  117;  Wise  v.  Miller,  45  Ohio    Phelps,  86  N.  Y.  484. 

St.    388,    4    N.    E.    218;    Hubbard    v.  Compare  Evans  v.  McCormick,  167 

Haley,  96  Wis.  578,  71  N.  W.  1036;  Pa.  St.  247,  31  Atl.  563. 

Mallory    v.    Lyman,    3    Pin.    (Wis.)  As  to  notice  of  default  see  §  353 

443.  herein. 

83.  Illinois.— Valtz  v.  Harris,  40  84,  Davis  v.  Wells,  104  U.  S.  159, 
111.  155;  Taylor  v.  Tolman  Co.,  47  26  L.  Ed.  686;  Cooke  v.  Orne,  37  111. 
111.  App.  264.  186;  Field  v.  Maish,  85  111.  App.  164; 

Indiana. — Nading     v.     McGregor,  Scribner  v.  Rutherford,  65  Iowa  551, 

121  Ind.  465,  23  N.  E.  283.  22  N.  W.  670;   De  Cramer  v.  Ander- 

lowa.— Carmen     v.     Elledge,     40  son,  113  Mich.  578.  71  N.  W.  1090. 

Iowa  409.  85.  Georgia. — Maury      v.     Waxel- 

Michigan.— Crittenden     v.     Fiske,  baum,  108  Ga.  14,  33  S.  E.  701. 

46  Mich.  70,  8  N.  W.  714.  Illinois.— Benny  v.   Crane,   80   UK 

Missouri. — Globe   Printing   Co.   v.  244. 

Bickle,  73  Mo.  App.  499.  Indiana.— Cole    v.    Bank,    60    Ind. 

Nebraska, — Lininger     &     Metcalf  350. 

Co.  V.  Wheat,  49  Neb.  567,  68  N.  W.  Iowa.— German  Savings  Bank  v. 
941. 


365 


GUAKANTY. 


§§  349,350 


§  349.  Guaranty  of  Payment. — Guaranty  of  payment  may  be 
made  on  the  back  of  the  instrument  or  by  a  separate  writing,  and 
whether  it  be  an  absolute  or  conditional  contract  is  not  settled. 
One  line  of  cases  holds  that  it  is  an  absolute  contract,  and  on  de- 
fault the  guarantor  need  not  be  notified  in  order  to  hold  him.^" 

In  other  jursdictions  a  guaranty  is  considered  as  conditional, 
and  the  guarantor  must  be  given  notice  at  once  of  the  non-pay- 
ment, in  order  to  hold  him.*^     The  cases  cannot  be  reconciled. 

§  350.  Conditional  Guaranty. — The  guarantor  may  sign  the 
contract  with  a  condition  annexed.     Thus,  where  the  guarantor 

Drake   Roofing  Co.,   112   Iowa   184,  Missouri. — People's  Bank  v.  Stew- 

83  N.  W.  960,  51  L.  R.  A.  758.  art,  152  Mo.  App.  314,  133  S.  W.  70. 

Louisiana. — Louisiana    R.    R.    Co.  New   York. — Allen   v.'  Rightmere, 

V.  Dillard,  51  La.  Ann.  1484,  26  So.  20  Johns.  365. 

451.  Ohio.— Clay  v.  Edgerton,  19  Ohio 

Minnesota. — Peterson   v.    Russell,  St.  549. 

62  Minn.  220,  64  N.  W.  555.  Tennessee.— Taylor     v.     Ross,     3 

Nebraska. — Fleuthaw  v.  Steward,  Yerg.  330. 

45  Neb.  640,  63  N.  W.  924.  Vermont.— Smith  v.  Ide,  3  Vt.  290. 

Pennsylvania. — Roberts  v.  Riddle,  A    guaranty   in   the   form   of   an 

79  Pa.  St.  468.  0.  K.  written  on  a  bill  of  goods  is 

86.  Alabama. — Donley  v.  Camp,  22  sufficient    to    create    a    contract    of 

Ala.  659.  guaranty.    Desgranges  v.  Newbauer, 

Connecticut.— Beardsley  v.  Hawes,  149  Mo.  App.  715,  129  S.  W.  759. 

71  Conn.  39,  40  Atl.  1043;  City  Sav.  An  indorsement  "I  hereby  guar- 

Bank   v.    Hopson,    53    Conn.    453,    5  antee  payment  of  the  within  note " 

Atl.  601.  creates     a    contract     of     guaranty. 

Georgia.— Sheppard  v.  Daniel  Mil-  Levy  v.  Webster,    106    Me.    500,    76, 

ler  Co.,  7  Ga.  App.  760,  68  S.  E.  451;  Atl.  936. 

Sheffield   v.    Whitfield,    6    Ga.   App.  87.  California.- Crooks  fv.    Tully, 


762,  65  S.  E.  807. 

Illinois. — Hance  v.  Miller,  21   111. 
636. 

Indiana. — Studebaker  v.  Cody,  54 
Ind.  586. 

Kentucky. — Levi     v.     Mendell,     1 
Duv.   (Ky.)    78. 

Maryland. — Wright    v.    Dyer,    48 
Md.  525. 

Michigan. — Roberts    v.    Hawkins; 
70  Mich.  566,  38  N.  W.  575. 

Minnesota.    —     Hungerford       v. 
O'Brien,  37  Minn.  306,  34  N.  W.  161. 

Mississippi. — Baker    v.    Kelly,    41  > 
Miss.  696. 


50  Cal.  254. 

Delaware. — Erwin  v.  Lambon,  1 
Harr.  125. 

Iowa. — Rockford  Sendon  Nat. 
Bank  v.  Gaylord,  34  Iowa  246. 

Maine. — Globe  Bank  v.  Small,  25 
Me.  366. 

Massachusetts. — Talbot  v.  Gay,  18 
Pick.  563. 

Nebraska. — Newton  Wagon  Co.  v. 
Diers,  10  Neb.  284,  4  N.  W.  995. 

South  Carolina. — Barrett  v.  May, 
2  Bailey  L.  1. 


§  351  Suretyship  and  Guaranty.  36G 

becomes  such  after  the  delivery  of  a  note  upon  a  condition,  and 
the  condition  is  not  complied  with,  the  contract  is  invalid-""  So 
a  party  guaranteeing  a  note  upon  condition  that  other  persons 
shall  also  become  guarantors,  the  payee  agreeing  to  such  condi- 
tion, is  released  if  the  other  parties  do  not  sign.^^  If  the  condi- 
tion is  complied  with  the  contract  is  valid.  And  if  one  signs 
upon  a  condition  that  a  counter  agreement  will  be  executed,  he  is 
not  entitled  to  notice  of  such  execution,  which  makes  it  absolute.^" 
But  where  there  is  nothing  in  the  contract  of  guaranty  to  show 
that  there  was  any  condition  annexed  to  its  execution  by  the  guar- 
antor, and  the  creditor  has  no  notice  or  knowledge  of  such  a  con- 
dition and  accepts  it  in  good  faith  it  will  be  binding  upon  the 
guarantor. ^^  An  absolute  guaranty  is  an  unconditional  under- 
taking on  the  part  of  the  guarantor  that  the  maker  will  pay  the 
note  or  other  debt.  A  conditional  guaranty  is  an  undertaking  to 
pay  if  payment  cannot,  by  reasonable  diligence,  be  obtained  from 
the  principal.^^ 

§  351.  Guaranty  of  Illegal  Contracts. — A  guaranty  of  an  il- 
legal contract  is  void.  If  the  guaranty  is  to  secure  the  perform- 
ance of  an  unlawful  act  it  is  invalid.^^ 

A  guaranty  may  be  limited.  'So  the  fact  that  a  note  provides 
for  a  certain  rate  of  interest,  does  not  make  the  contract  of  guar- 
anty illegal,  because  it  provides  for  a  less  rate  of  interest ;  such 
difference  in  the  rate  of  interest  does  not  create  a  repugnancy  be- 
tween the  note  and  the  guaranty.®* 

An  absolute  guarantor  is  liable  for  a  note  which  is  purchased 
by  an  innocent  party  on  the  strength  of  the  guaranty,  though  the 
note  is  invalid.®^    And  the  same  rule  applies  to  a  certificate  of  de- 

88.  Eaton  v.  Foster,  66  111.  App.  92.  Beardsley  v.  Hawes,  71  Conn. 
486;  Price  v.  Oatman  (Tex.  Civ.  39,  40  Atl.  104.3;  Cowles  v.  Pick  55 
App.),  77  S.  W.  258.  Conn.  251,  10  Atl.  569. 

89.  Belleville  Sav.  Bank  v.  Born-  93.  Jack  v.  Sinsheimer,  125  Cal. 
man,  124  111.  200,  16  N.  E.  210;  State  563,  58  Pac.  130;  Howard  v.  Smith, 
Bank    of    Utah    v.    Burton-Gardner  91  Tex.  8,  38  S.  W.  15. 

Co.,  14  Utah  420,  48  Pac.  402.  94.  Cozzens  v.  Chicago  Hydraulic- 

90.  Lennox  v.  Murphy,  171  Mass.  Press  Brick  Co.,  166  111.  213,  46  N. 
370,  50  N.  E.  644.  E.  788. 

91.  Hill   Mercantile   Co.  v.   Rotan  9.').  Holm  v.  Jamieson,  173  III  295,. 
Grocery  Co.    (Tex.  Civ.  App.  1910),  50  N.  E.  702. 

127  S.  W.  1080. 


367:  GuAKANTYo  §  352 

posit,  if  it  is  valid  upon  its  face,  and  its  invalidity  is  for  matters 
dehors  its  face.^**  And  the  guarantor  will  be  bound  although  some 
of  the  prior  parties'  names  to  the  note  are  forged." 

In  some  States  a  guaranty  made  on  Sunday  is  void  f^  in  others 
a  contract  made  on  Sunday  is  valid  f^  and  such  is  the  com- 
mon law  rule.^  So  if  a  contract  of  guaranty  or  any  other  is 
void  if  made  on  Sunday,  it  is  so  by  statutory  provision. 

§  352.     Default   of   Payment — Notice   to    Guarantor. — In    the 

case  of  collateral  continuing  guaranty  for  the  payment  of  goods 
to  be  thereafter  sold,  a  guarantee  who,  from  time  to  time,  sella 
goods  on  the  faith  of  the  guaranty,  must  give  the  guarantor  rea- 
sonable notice  of  defaults  of  payment  on  the  part  of  the  principal 
debtor ;  and  the  guarantor  will  be  discharged  from  liability  so  far 
as  he  may  sustain  loss  and  damages  resulting  from  a  failure  of 
the  guarantee  to  give  such  notice.  But  if  such  notice  can  result 
in  no  benefit  to  the  guarantor,  and  no  injury  results  to  him  from 
failure  to  give  such  notice,  such  omission  on  the  part  of  the  guar- 
antee will  not  bar  recovery  for  such  defaults,  from  the  guarantor.^ 
Thus,  where  A  made  and  delivered  to  B  a  writing  guaranteeing 
the  prompt  payment  of  all  debts  which  0  might  make  by  the  pur- 
chase of  goods  from  B'  in  the  future,  with  interest  thereof,  B  not 
being  obliged  to  sell  or  'C  to  purchase  any  goods,  the  undertaking 
of  A  will  not  be  an  absolute  guaranty,  but  a  collateral  or  condi- 
tional one,  and  reasonable  notice  must  be  given  to  A  of  the  failure 

96.  Purdy  v.  Peters,  35  Barb.  (N.  Illinois. — Taussig  v.  Reid,  145  111. 
Y.)   239.  488,  32  N.  E.  918. 

97.  Veazle  v.  Willis,  6  Gray  Iowa. — Grier  v.  Irwin  (Iowa 
(Mass.)   90.  1909),  86  N.  W.  273. 

98.  Carrick  v.  Morrison,  2  Del.  Maine. — Howe  v.  Nickels,  22  Me. 
157,  42  Atl.  447.  175. 

99.  Richmond  v.  Moore,  107  111.  Massachusetts.  —  Cumberland 
429.  Glass    Mfg.    Co.     v.    Wheaton,    208 

1.  Taussig  V.  Reid,  145  111.  488,  Mass.  425,  94  N.  E.  803;  Clark  v. 
32  N.  E.  918.  Remington,  11  Mete.  361. 

2.  United  States. — Davis  v.  Wells,  Miehig-an.— Crittenden  v.  Piske,  46 
104  U.  S.  159,  26  L.  Ed.  686.  Mich.  70,  8  N.  W.  714. 

Florida. — Ferst  v.  Blackwell,  39  Mississippi. — Montgomery  v.  Kel- 
Fla.  621,  22  So.  892.  log,  43  Miss.  486. 

England. — Martin    v.     Wright,    6 
Adol.  &  E.  917. 


%  353 


Suretyship  and  Guakanty. 


368 


of  C  to  pay  for  goods  bought  by  him,  uuless  such  notice  would  be 
of  no  benefit  to  A.^ 

§  353*  Notice  of  Default. — Notice  of  default  when  necessary- 
must  be  given  within  a  reasonable  time.*  What  is  a  reasonable 
time  for  such  notice  depends  upon  circumstances.  If  it  be  given 
before  loss  can  occur,  or  the  situation  of  the  parties  becomes 
changed  so  as  to  endanger  loss,  it  is  sufficient ;  if  delayed  so  long 
as  to  deprive  the  guarantor  of  the  means  of  securing  himself,  it 
will  not  be  in  time,  and  the  guarantor  will  be  released.^ 

But  if  the  principal  is  insolvent  when  the  debt  becomes  due 
or  default  is  made,  no  notice  is  required,  because  the  guarantor 
could  derive  no  benefit  from  the  receipt  of  notice.^ 

Of  course,  where  the  contract  is  an  absolute  guaranty  as  where 
it  provides  that  a  definite  sum  shall  be  paid  at  a  stated  time,  no 
notice  of  default  is  necessary  before  suit  is  brought  against  the 
guarantor.^  Unlike  a  contract  of  an  indorser,  there  is  no  condi- 
tion as  to  demand  and  notice  of  default  annexed  to  a  contract  of 
guaranty  of  pa^onent  or  of  performance.^ 


3.  Taussig  v.  Reid,  145  111.  488,  32 
N.  E.  ni8. 

4.  Indiana. — Furst  &  Bailey  Mfg. 
Co.  V.  Black,  111  Ind.  308,  12  N.  E. 
504. 

Massachusetts. — Oxford  Bank  v. 
Haynes,  8  Pick.  423. 

Minnesota. — Brackett  v.  Rich,  23 
Minn.  485. 

Ohio. — Greene  v.  Dodge,  2  Ohio 
231. 

Pennsylvania. — Patterson  v.  Reed, 
7  Watts  &  S.  144. 

Yermont. — Sylvester  v.  Downer, 
18   Vt.  31. 

Wisconsin. — Sentil  Co.  v.  Smith, 
143  Wis.  377,  127  N.  W.  943. 

5.  Dickerson  v.  Derrickson,  39  111. 
574;  Taussig  v.  Reid,  145  111.  488,  32 
N.  E.  918. 

6.  Walker  v.  Forbes,  25  Ala.  139; 
Taussig  V.  Reid,  145  111.  488,  32  N. 
E.  918;  Brackett  v.  Rich,  23  Minn. 
485;  Dearborn  v.  Sawyer,  59  N.  H. 
95. 


7.  Georg:ia. — Gammell     v.     Pana- 

more,  58  Ga.  54. 

Idaho. — Miller  v.  Lewiston  Na- 
tional Bank,  18  Ida.  124,  108  Pac. 
901. 

Illinois.— Gage  v.  Bank,  79  111.  62; 
Mary  Blanc  &  Co.  v.  Jacobson,  149 
111.  App.  240. 

Iowa. — Peck  v.  Frink,  10  Iowa, 
193. 

Massachusetts.  —  Cumberland 
Glass  Mfg.  Co.  V.  Wheaton,  208  Mass. 
425,  94  N.  E.  803 ;  Lent  v.  Padelford, 
10  Mass.  230. 

Missouri. — Barker  v.  Scudder,  56 
Mo.  272;  People's  Bank  v.  Stewart, 
152  Mo.  App.  314,  133  S  W.  70. 

New  Jersey. — Newcomb  v.  Kloeb- 
len,  77  N.  J.  L.  791,  74  Atl.  511. 

Ohio. — Powers  v.  Bumcratz,  12 
Ohio  St.  273. 

Wisconsin. — Hubbard  v.  Haley,  96 
Wis.  578,  71  N.  W.  1036. 

8.  Hubbard  v.  Haley,  96  Wis.  578. 
71  N.  W.  1036. 


■369  OUARANTY.  §    354 

§  354.  Continuing  Guaranty. — When  the  parties  to  a  guaranty 
look  to  a  future  course  of  dealing  for  an  indetinite  time,  or  a  suc- 
cession of  credits  to  be  given,  it  is  to  be  deemed  a  continuing 
guaranty;  but  when  no  time  is  lixed  upon  and  nothing  in  the 
agreement  indicates  a  continuance  of  the  undertaking,  the  pre- 
sumption is  in  favor  of  a  limited  liability  as  to  time.  Thus,  a 
guaranty  of  payment  for  goods  to  be  sold  ''  from  time  to  time  '' 
to  an  amount  not  exceeding  a  specified  sum,  is  continuous  antil 
the  sums  remaining  unpaid  reach  the  designated  limit,  although 
the  aggregate  of  purchases  have  exceeded  it.^  The  rule  is  this: 
When  by  the  terms  of  the  undertaking,  by  the  recitals  in  the  in- 
struments, or  by  a  reference  to  a  custom  and  course  of  dealing  be- 
tween the  parties,  it  appears  that  the  guaranty  looks  to  future 
course  of  dealing  for  an  indefinite  time,  or  a  succession  of  credits 
to  be  given,  it  is  to  be  deemed  a  continuing  guaranty,  and  the 
amount  expressed  is  to  limit  the  amount  for  which  the  guarantor  is 
to  be  responsible.^" 

§  355.     Letters  of  Credit  May  Be  a  Continuing  Guaranty. — 

Letters  of  credit  may  be  so  expressed  as  to  be  a  continuing  guar- 

9.  United  States. — Douglas  v.  Maine. — Reed  v.  Fish,  59  Me.  358. 
Reynolds,  7  Pet.  113,  8  L.  Ed.  €26.  Massachusetts.— Boston,  &c.  Co.  v. 

Illinois. — Taussig  v.  Reid,  145  111.  Moore,  119  Mass.  435. 

488,  32  N.  E.  918.  IVew  Jersey.— Newcomb  v.  Kloeb- 

Massachusetts.— Sherman  v.  Mul-  len,  77  N.  J.  L.  791,  74  Atl.  511. 

loy,  174  Mass.  41,  54  N.  E.  345;  Me-  New  York.- Strong  v.  Lyon,  63  N. 

lendy    v.    Capen,    120    Mass.    222;  Y.  172;  First  National  Bank  of  Ft. 

Hatch  V.  Hobbs,  12  Gray  447.  Wayne  v.  Stockyards  Bank,  138  App. 

Michigan.— Crittenden  v.  Fiske,  46  Div.  918,  123  N.  Y.  Supp.  655. 

Mich.  70,  8  N.  W.  714.  PennsylTania.    —    Anderson      v. 

New   York.— Gates    v.   McKee,    13  Blakeley,  2  Watts  &  S.  237. 

N.  Y.  232.  Rhode  Island.— Congdon  v.  Read, 

England.— Mason  v.  Pritchard,  12  7  R.  I.  576. 

East  227.  Wisconsin. — ^First   National   Bank 

10.  United  Spates.— Bond  v.  Far-  v.  Wunderlich,  145  Wis.  193,  130  N. 
well  Co.,  178  Fed.  58,  96  C.  C.  A.  W.  98;  Sentinel  Co.  v.  Smith,  143 
546.  Wis.  377,  127  N.  W.  943. 

Connecticut.    —    Hotchkiss        v.  A  continuing  guaranty  remains  in 

Barnes,  34  Conn.  27.  force  until  revoked.    Merchants  Na- 

Illinois. — Malleable     Iron     Range  tional  Bank  v.  Cole,  83  Ohio  St.  50, 

Co.  V.  Pusey,  244  111.  184,  91  N.  E.  93  N.  E.  465. 
51. 

24 


§  355 


Suretyship  and  Guaeanty. 


370 


antj.  If  the  parties  appear,  by  the  letter  of  credit,  to  contemplate 
a  course  of  future  dealing  between  the  parties,  it  is  not  exhausted 
by  giving  credit  even  to  the  amount  limited  bj  the  letter  v^hich  is 
subsequently  reduced  or  satisfied  by  payment  made  by  the  debtor, 
but  is  to  be  deemed  a  continuing  guaranty,"  and  the  writer  of  the 
letter  of  credit  is  liable  for  the  credit  given  upon  it  without  notice 
to  him  unless  its  terms  express  or  imply  the  necessity  of  giving 
notice.  Where  there  is  a  guaranty  for  future  operations,  and  one 
of  uncertain  amount,  there  should  be  a  distinct  notice  of  accept- 
ance. But  where  the  guaranty  is  absolute  in  its  terms,  no  notice 
is  necessary.^^ 

Where  a  proposition  is  made  by  one  party  to  guarantee  pay- 
ment to  another,  if  he  will  sell  goods  to  a  third  party,  notice  of 
acceptance  of  the  proposition  is  necessary  to  create  the  contract 
of  guaranty.^ 

But  another  line  of  cases  holds  that  notice  must  be  given  of  ac- 
ceptance of  an  absolute  guaranty  within  a  reasonable  time  to  the 
guarantor."  But  this  doctrine  is  opposed  to  the  weight  of  Eng- 
lish and  American  authority.^^ 

11.  Gates  V.  McKee,  13  N.  Y.  232. 

12.  Iowa. — Cormon  v.  Elledge,  40 
Iowa  400. 

Massachusetts. — Paige  v.  Parker, 
8  Gray  211. 

New  York. — Union  Bank  v.  Cos- 
ter, 3  N.  Y.  204;  Douglass  v.  How- 
land,  24  Wend.  35. 

Ohio. — Powers  v.  Bumcratz,  12 
Ohio  St.  273,  where  the  cases  are 
reviewed. 

Tennessee. — Yancey  v.  Brown,  3 
Sneed  89. 

Vermont. — Maynard  v.  Morse,  36 
Vt.  617. 

13.  New  York.— Whitney  v.  Groat, 
24  Wend.  81;  Smith  v.  Dann,  6  Hill 
(N.  Y.)   543. 

Texas. — Lemp  v.  Armegol,  86  Tex. 
690,  26  S.  W.  941. 

Illinois. — Cooke  v.  Orne,  37  111. 
186;  Neagle  v.  Sprague,  63  111.  App. 
25. 


Indiana.— Wright  v.  Griffith,  121 
Ind.  478,  23  N.  E.  281. 

Massachusetts. — Bishop  v.  Eaton, 
161  Mass.  496,  37  N.  E.  665. 

14,  United  States.  —  Adams  v. 
Jones,  12  Pet.  207,  9  L.  Ed.  1058; 
Lee  V.  Dick,  10  Pet.  482,  495,  9  L. 
Ed.  503;  Douglass  v.  Reynolds,  7 
Pet.  113,  8  L.  Ed.  626. 

Alabama. — Walker  v.  Forbes,  25 
Ala.  147;  Lawson  v.  Townes,  2  Ala. 
375. 

Arkansas. — McCollum  v.  Gushing, 
22  Ark.  542. 

Connecticut. — Croft  v.  Isham,  13 
Conn.  36. 

Delaware. — Taylor  v.  McCluney,  2 
Houst.  38. 

Kentucky. — Kinchelor  v.  Holmes, 
7  B.  Mon.  9. 

Louisiana. — Bank  v.  Sloo,  10  La. 
Ann.  543. 

15.  Powers  v.  Bumeratz,  12  Ohio 
St.    273,    where    the    English    and 


371 


Guaranty. 


§  356 


§  356.  Cnstruction  of  Contract. — The  weight  of  authority  is 
in  favor  of  construing  a  contract  of  guaranty  by  rules  which 
apply  as  favorably  to  the  guarantor  as  those  which  apply  to  other 
contracts,  notwithstanding  the  guarantor  is,  in  a  sense,  to  be  re- 
garded as  a  surety.  ^^ 

'Commercial  guaranties  are  in  extensive  use,  and  should  receive 
the  liberal  construction  that  is  given  to  other  contracts/^  In  such 
construction,  technicalities  should  be  excluded  and  the  reasonable 
intention  of  the  parties,  as  it  may  be  gathered  from  all  parts  of 
the  contract,  should  prevail.^*  The  guarantor's  liability  must  not 
be  enlarged  by  implication,  nor  must  he  be  held  for  purchases 
made  by  another  for  an  indefinite  time  nor  for  an  unlimited  ex- 
tent, unless  the  intent  of  the  guarantor  so  to  bind  himself  is 
clearly  manifest.^^ 


American  authorities  are  reviewed; 
German  Sav.  Bank  v.  Roofing  Co., 
112  Iowa  184,  51  Cent.  L.  Journal, 
428,  and  note. 

16.  United  States. — Drummond  v. 
Prestman,  12  Wheat.  515,  6  L.  Ed. 
712;  Laurence  v.  McCalmont,  2  How. 
426,  11  L.  Ed.  326;  National  Bank 
of  Commerce  v.  Rockefeller,  174 
Fed.  22,  98  C.  C.  A.  8. 

Illinois. — Taussig  v.  Reid,  145  111. 
488,  32  N.  E.  918;  Com.  Exchange 
National  Bank  of  Chicago  v.  Curtiss, 
146  111.  App.  489;  Acorn  Brass  Co. 
V.  Gilmore,  142  111.  567. 

New  York. — Guardian  Trust  Co. 
V.  Peabody,  122  App.  Div.  648,  107 
N.  Y.  Supp.  515,  affirmed  195  N.  Y. 
544,  88  N.  E.  1120;  Dobbins  v.  Brad- 
ley, 17  Wend.  422. 

Ohio. — National  Bank  of  Com- 
merce V.  Garn,  23  Ohio  Cir.  Ct.  R. 
447. 

Texas. — See  Damell  v.  Dolan 
(Tex.  Civ.  App.  1910),  132  S.  W. 
857. 

Parol  statements  not  admissible 
to  vary  terms  of  a  contract  which 
are   clear   and   unambiguous.     Na- 


tional Bank  of  Commerce  v.  Rocke- 
feller, 174  Fed.  22,  98  C.  C.  A.  8. 

17.  Douglass  v.  Reynolds,  7  Pet. 
(U.  S.)  113,  8  L.  Ed.  626;  Hargreaves 
V.  Smee,  6  Bing.  244;  Mayer  v. 
Isaacs,  6  Mees.  &  W.  605. 

18.  Rouss  V.  Cregler,  103  Iowa  60, 
72  N.  W.  429;  Cumberland  Glass 
Mfg.  Co.  V.  Wheaton,  208  Mass.  425, 
94  N.  E.  803;  Morris  &  Co.  v.  Lucker. 
158  Mich.  518,  123  N.  W.  21;  Senti- 
nel Co.  V.  Smith,  143  Wis.  377,  127 
N.  W.  943. 

Jfegligence  or  bad  faith.  An  in- 
tent to  guarantee  against  results  of 
will  not  be  attributed.  Krafft  v. 
Citizens  Bank  of  Dyersburg,  139 
App.  Div.  (N.  Y.)  610.  124  N.  Y. 
Supp.  214. 

19.  United  States.— National  Bank 
of  Commerce  v.  Rockefeller,  174 
Fed.  22,  98  C.  C.  A.  8. 

Alabama. — Andrews  &  Co.  r. 
Stowers  Furniture  Co.,  136  Ala.  244, 
52  So.  316. 

California. — Jack  v.  Sinsheimer, 
125  Cal.  563,  58  Pac.  130;  Van  Valk- 
enburgh  v.  Oldham,  12  Cal.  App.  572, 
108  Pac.  42. 


§  356  SUEETYSHIP  AND  GuAKANTY.  372 

A  guaranty  should  be  liberally  construed  according  to  the  in- 
tention of  the  parties  as  manifested  by  the  terms  of  the  contract 
taken  in  connection  with  the  subject  matter,  and  in  order  to  as- 
certain the  intention  of  the  parties  the  circumstances  of  the  whole 
transaction  must  be  considered.^*^  But  the  words  of  the  contract 
cannot  be  enlarged  beyond  their  natural  import  in  favor  of  the 
guarantor,  nor  restricted  in  aid  of  the  creditor.  The  circum- 
stances  accompanying  the  whole  transaction  may  be  looked  to  in 
ascertaining  the  intention  of  the  parties.^^  A  contract  of  surety 
must  have  such  a  construction  given  to  it  as  will  carry  out  the 
intention  of  the  parties ;  a  contract  of  guaranty  is  not  to  be  inter- 
preted by  any  different  rule.  So  where  a  party  guaranties  that 
a  minor  will  ratify  a  sale  of  land  made  to  him  when  he  arrives 
at  majority,  and  also  the  notes  given  in  payment  for  the  land,  a 
ratification  of  the  sale  and  notes  upon  his  becoming  of  age  will 
release  the  guarantor,  because  it  was  not  a  personal  guaranty  of 
payment  of  the  notes,  but  only  that  the  minor  would  not  repudi- 
ate the  transaction  at  majority;  for  the  only  purpose  of  the  exe- 
cution of  such  contract  was  that  the  indebtedness  should  not  be 
repudiated  or  payment  refused  on  account  of  the  age  of  the  maker 
of  the  notes,  as  manifested  by  the  intention  of  the  parties  and  the 

Kansas. — Dry  Goods  Co.  v.  Year-  merce  v.   Rockefeller,   174  Fed.   22, 

out,  95  Kan.  684,  54  Pac.  1062.  98  C.  C.  A.  8. 

Massachusetts.  —  Lascelles        v.  A  guaranty  of  any  debt  will  not 

Clark,  204  Mass.  362,  90  N.  E.  875.  cover  liability  on  a  guaranty.     Na- 

Micliigan.  —  Morris     &     Co.     v.  tional  Bank  of  Commerce  v.  Rocke- 

Lucker,  158  Mich.  518,  123  N.  W.  21.  feller,  174  Fed.  22,  98  C.  C.  A.  8. 

Nebraska. — Harvey   v.   First   Nat.  20.  Rapp  v.  Linebarger  &  Son,  149 

Bank,  56  Neb.  320,  76  N.  W.  870.  Iowa  429,  128  N.  W.  555,  rev'g  125 

IVew  York. — Guardian  Trust  Co.  v.  N.   W.    209 ;    Hooper   v.   Hooper,   81 

Peabody,  122  App.   Div.  648,  107  N.  Md.  155,  31  Atl.  508. 

Y.  Supp.  515,  affirmed  195  N.  Y.  544,  21.  Davis  v.  Wells,  104  U.  S.  159, 

88  N.  E.  1120.  26  L.  Ed.  686;  Mauran  v.  Bullus,  16 

Ohio.— National     Bank     of     Com-  Pet.  (U.  S.)  528,  10  L.  Ed.  1056;  Lee 

merce  v.  Gaar,  23  Ohio  Cir.  Ct.  R.  v.  Dick,  10  Pet.  (U.  S.)  482,  9  L.  Ed. 

447.  503;   Bell  v.  Bruen,  1  How.    (U.  S.) 

South  Carolina,— Bank  of  Ipswich  169,  11  L.  Ed.  89. 

V.  Ayers,  26  So.  Dak.  216,  128  N.  W.  The  exact  terms  of  the  contract 

127.  control.     Van  Volkenburgh  v.  Old- 

A  guaranty  will  not  cover  a  note  ham,  12  Cal.  App.  572,  108  Pac.  42; 

given   prior   to    the    giving   of   the  ]\lorris  &  Co.  v.  Lucker,  158  Mich. 

guaranty.     National  Bank  of  Com-  518,  123  N.  W.  21. 


373 


Guaranty. 


§  356 


circumstances  surrounding  the  whole  transaction.^^  But  the  au- 
thorities are  in  conflict.  In  some  cases  a  strict  interpretation,  it 
is  said,  should  be  in  favor  of  the  guarantor.^^  Other  decisions 
hold  that  such  contract  should  be  construed  like  other  contracts.^* 
Still  others  hold  that  the  contract  is  not  to  be  construed  strongly 
in  favor  of  or  against  the  guarantor.^^  Again  it  is  held  that  it 
will  be  construed  most  strongly  against  the  guarantor.^^  And 
others  hold  that  there  should  be  a  reasonable  interpretation  ac- 
cording to  the  intention  of  the  partes.^^ 

The  construction  of  letters  of  credit  should  be  reasonable  and 
liberal,  so  as  to  render  them  safe  to  rely  on.^^  If  the  credit  is 
limited,  the  party  advancing  on  the  faith  of  the  letter  is  bound  at 
his  peril  to  ascertain  whether  the  authority  conferred  has  been 
exhausted. ^^  Thus,  a  guaranty  for  goods  sold  on  six  months'  credit 
does  not  cover  a  four  months'  credit  f^  the  credit  must  be  accord- 
ing to  the  terms  of  the  letter.^^ 


22.  Starr  v.  Milliken,  180  111.  458, 
54  N.  E.  328. 

23.  Drummond  v.  Prestman,  12 
Wheat.  (U.  S.)  515,  6  L.  Ed.  712; 
Bright  V.  McKnight,  1  Sneed  (Tenn.) 
164. 

Ambiguities  should  be  construed 
in  favor  of  guarantor.  Hill  Mer- 
cantile Co.  V.  Rotan  Grocery  Co. 
(Tex.  Civ.  App.  1910),  127  S.  W.  1080. 

24.  London  &  S.  F.  Bank  v.  Par- 
rott,  125  Cal.  472,  28  Pac.  164;  Corn 
Exchange  National  Bank  of  Chicago 
v.  Curtiss,  146  111.  App.  489;  Acorn 
Brass  Co.  v.  Gilmore,  142  111.  App. 
567;  Wills  v.  Ross,  77  Ind.  1;  Smith 
V.  Molleson,  148  N.  Y.  241,  246,  42 
N.  E.  669. 

25.  White  v.  Reed,  15  Conn.  457; 
Mussey  v.  Raynor,  22  Pick.  (Mass.) 
228;  Crist  v.  Burlingham,  62  Barb. 
(N.  Y.)  351. 

26.  Newcorab  v.  Kloeblen,  77  N.  J. 
L.  791,  74  Atl.  511. 

27.  United  States.— Davis  v.  Wells, 
104  U.  S.  159,  26  L.  Ed.  686. 

Illinois. — Peoria  Savings  Loan  & 


Trust  Co.  v.  Elder,  165  111.  55,  45  N. 
E.  1083. 

Iowa. — Shickle,  Harrison  &  How- 
ard Iron  Co.  V.  Water  Works  Co.,  83 
Iowa  396,  49  N.  W.  987. 

Michigan. — Mathews  v.  Phelps,  61 
Mich.  327,  28  N.  W.  108. 

Missouri. — Shine  v.  Bank,  70  Mo. 
524. 

Nebraska. — Tootle  v.  Elgutter,  14 
Neb.  160. 

New  York. — Bennett  v.  Draper, 
139  N.  Y.  266,  34  N.  E.  791. 

Ohio. — Birdsall  v.  Heacock,  32 
Ohio  St.  177. 

Oregon. — Wiler  v.  Henarie,  15 
Oreg.  28,  13  Pac.  614. 

Texas. — Gardner  v.  Watson,  76 
Tex.  25,  13  S.  W.  39. 

28.  Lawrence  v.  McCalmont,  2 
How.  (U.  S.)  426,  . .  L.  Ed.  •  . ;  Bel- 
loni  v.  Freeborn,  63  N.  Y.  383. 

29.  Ranger  v.  Sargeant,  36  Tex. 
26. 

Compare  Russell  v.  Wiggin,  2 
Story,  213. 

30.  Leeds  v.  Dunn,  10  N.  Y.  475.. 

31.  Dodge  V.  Myer,  1  Cal.  405. 


§  357  Suretyship  and  Guaeanty.  374 

§  357-  Negotiability  of  a  Guaranty. — A  general  guaranty  is 
assignable  with  tlio  obligation  secured  thereby,  and  it  goes  with 
the  principal  obligation,  and  is  enforceable  by  the  same  persons 
who  can  enforce  the  obligation.^^  The  rule  is,  as  to  general  guar- 
anty, that  the  transfer  of  a  note  carries  with  it  all  security,  even 
if  there  is  no  formal  assignment  or  delivery,  or  mention  of  the 
guaranty.^^ 

This  rule  is  so  because  a  general  guaranty  is  one  open  for  ac- 
ceptance by  the  whole  world.  But  a  special  guaranty  is  different ; 
it  is  limited  to  a  person  to  whom  it  is  addressed  and  usually  con- 
templates a  trust  or  repose  of  confidence  in  such  person,  and 
may  not  be  assignable  until  a  right  of  action  has  arisen  thereon.^* 
But  when  one  purchases  a  note  which  is  secured  by  a  general 
guaranty,  he  is  entitled  to  the  benefit  of  such  guaranty,  though  he 
buys  in  ignorance  thereof."^ 

But  there  is  conflict  among  the  authorities  on  the  negotiability 
of  a  guaranty.  It  is  held  that  a  guaranty  of  a  note  or  bill  con- 
tained in  a  separate  instrument  is  not  negotiable  merely  because 
the  paper  guaranteed  has  that  quality.  So  a  guaranty  may  he 
assigned  Avith  the  note  and  the  holder  will  thereby  be  invested 
with  the  equitable  title  thereof  as  between  the  parties. ^^  In  a 
number  of  cases  it  is  held  that  a  guaranty  indorsed  on  a  note 
passes  with  the  note  in  the  hands  of  a  bo7ia  fide  holder.^''     Other 

32.  Everson  v.  Gere,  122  N.  Y.  290,  New  York.— Stillwell  v.  Northrup, 
25  N.  E.  492;    Claflin  v.  Ostrom,  54    109  N.  Y.  473,  17  N.  E.  379. 

K.   Y.    581;    Bassett   v.   Perkins,   65  PennsylTania. — Reed  v.  Garvin,  12 

Misc.  R.  (N.  Y.)  103,  119  N.  Y.  Supp.  Serg.  &  R.  100. 

354;  First  National  Bank  v.  Taylor  Utah. — First    National    v.    Taylor 

(Utah),  114  Pac.  529;  Tidionte  Sav-  (Utah  1911),  114  Pac.  529. 

ings  Bank  v.  Libbey,  101  Wis.  193,  Wisconsin. — Croft    v.    Bunster,    9 

77  N.  W.   182;    Lane  v.  Duchac,  73  Wis.  503. 

Wis.  646,  41  N.  W.  962.  34.  Jex  v.   Straus,   122  N.   Y.  293, 

33.  United  States. — Carpenter  v.  25  N.  E.  478,  distinguishing  Evans- 
Longan,  16  Wall.  271,  21  L.  Ed.  313.  ville    Nat.    Bank    v.    Kauffmann,    93 

Illinois.— Ellsworth     v.     Harmon,  N.  Y.  273. 

101  111.  274.  35.  Tidioute  Sav.  Bank  v.  Libbey, 

Iowa.— Jones      v.      Berryhill,      25  101  Wis.  193,  77  N.  W.  182. 

Iowa  289.  36.  McLaren  v.  Watson,  26  Wend. 

Kansas. — Commercial      Bank      v.  (N.    Y.)    425;    Arents    v.    Common- 
Provident  Institution,   59   Kan.   361,  wealth,  18  Gratt.   (Va.)   770. 
53  Pac.  131.  37.  Webster  v.   Cobb,   17   111.  466; 

Minnesota. — Harbord    v.     Cooper,  Commercial  Bank  v.  Provident  Insti- 

43  Minn.  466,  45  N.  W.  860.  tution,    59    Kan.    361,    53    Pac.    131; 


S7l 


GUAEANTT. 


§    35S 


cases  hold  that  a  guaranty  cannot  be  transferred  to  a  third  per- 
son so  as  to  authorize  him  to  proceed  in  his  own  name  on  the 
guaranty  against  the  guarantor,^*  and  this  applies  whether  in- 
dorsed on  the  note  by  the  payee,'^^  or  by  a  third  party.'"^  Another 
class  of  cases  holds  that  the  transferee  may  sue  in  his  own  name, 
but  takes  the  instrument  with  all  the  equities  while  in  the  hands 
of  the  assignor," 

A  letter  of  credit  addressed  to  a  particular  person  is  not  assign- 
able.*^ When  bonds  are  made  payable  to  bearer,  if  the  guaranty 
is  indorsed  thereon,  it  passes  with  the  bond.^^  Some  authorities 
hold  that  the  assignee  of  the  bond  must  bring  suit  in  the  name 
■of  the  assignor  for  his  use.** 

In  Kentucky  under  the  statute  a  written  guaranty  of  the  stock 
of  a  corporation  may  be  assigned  same  as  a  bond.*^  Generally  the 
guaranty  of  a  mortgage  passes  with  it.*^ 

§  358.  Negotiability  of  Guaranty  Under  Seal. — No  one  but 
the  party  to  whom  the  guaranty  under  seal  is  given  can  sue  on  it. 


State  Nat.  Bank  v.  Haylen,  14  Neb. 
480,  16  N.  W.  754. 

38.  Massachusetts.  —  Edgerly  v. 
Lawson,  176  Mass.  551,  57  N.  E. 
1020;  Tuttle  v.  Binney,  12  Mete.  452. 

Michigan. — Tinker  v.  McCauley,  3 
Mich.  188. 

New  York. — Miller  v.  Gaston,  2 
Hill  192. 

Pennsylvania. — McDoal  v.  Yeo- 
mans,  8  Watts.  361. 

Wisconsin. — Ten  Eyck  v.  Brown,  3 
Pin.  452. 

39.  Tuttle  V.  Bartholomew,  12  Met. 
(Mass.)  452;  McDoal  v.  Yeomans,  8 
Watts.  (Pa.)   361. 

40.  True  v.  Fuller,  21  Pick.  (Mass.) 
140. 

41.  United  States.— Central  Trust 
Co.  V.  Bank,  101  U.  S.  68,  25  L.  Ed. 
876. 

loTva. — EHibuque  First  Nat.  Bank 
V.  Carpenter,  41  Iowa  518. 

Michigan. — Phelps  v.  Church,  65 
Mich.  231,  32  N.  W.  30. 


Minnesota. — Phelps  v.  Sargent,  69 
Minn.  118,  71  N.  W.  927. 

New  York. — Everson  v.  Gere,  122 
N.  Y.  290,  25  N.  E.  492. 

42.  Robbins  v.  Bingham,  4  Johns. 
(N.  Y.)   476. 

43.  Louisville  Trust  Co.  v.  Rail- 
road Co.,  75  Fed.  433;  Lemmon  v. 
Strong,  59  Conn.  448,  22  Atl.  293; 
Wooley  V.  Moore,  61  N.  J.  L.  16,  22 
Atl.  293;  Craig  v.  Parks,  40  N.  Y. 
181. 

44.  Ashland  Bank  v.  Jones,  16 
Ohio  St.  145;  Reed  v.  Garvin,  12  S. 
&  R.  100;  Smith  v.  Dickinson,  6 
Humph.   (Tenn.)   261. 

45.  Rogers  v.  Harvey,  143  Ky.  88, 
136  S.  W.  128. 

46.  Stillman  v.  Northrup,  109  N. 
Y.  473,  17  N.  E.  379. 

See,  also.  Tucker  v.  Blandin,  48 
Hun  439;   125  N.  Y.  69. 

Compare  Briggs  v.  Latham,  36 
Kan.  205,  13  Pac.  129. 


§  359 


SUEETYSIIIP  AND   GuAEANTY. 


37G 


although  given  for  the  benefit  of  others."  This  is  the  general  rule, 
but  there  are  a  few  cases  that  hold  that  the  party  for  whose  use 
the  contract  is  made,  which  is  evidenced  by  the  contract  itself, 
may  sue  in  his  own  name,  and  that  such  guaranty  under  seal  is 
negotiable/^ 

Thus,  in  Illinois,  a  third  party  for  whose  benefit  a  contract  is 
made  may  bring  assumpsit  in  his  own  name,  on  the  contract, 
whether  the  contract  is  simple  or  under  seal.^^ 

§  359-  Guaranty  of  Collection. — A  guaranty  of  a  collection  of 
a  note  or  debt  is  dift'erent  from  a  guaranty  of  payment.  On  the 
subject  of  guaranty  of  payment,  the  rule  is  not  uniform.  One 
line  of  decisions  hold  in  case  of  a  guaranty  of  the  collection  of  a 
note,  that  it  is  not  necessary  for  the  holder  to  try  collection  by  legal 
proceedings,  provided  it  would  be  of  no  avail.^*  The  guaranty  is 
that  the  guarantor  will  pay  if  the  holder  uses  due  diligence  and 
fails  to  collect.  He  must  employ  the  usual  means  to  collect  of  the 
maker,  unless  such  means  would  be  unavailing  on  the  account  of 
the  insolvency  of  the  maker.^^     So  if  a  suit  would  be  unavailing, 


47.  Maine. — Farmington  v.  Ho- 
bert,  74  Me.  416. 

Massachusetts. — Flynn  v.  Ins.  Co., 
115  Mass.  449;  Huntington  v.  Knox, 
7  Cush.  374. 

New  Jersey. — Loeb  v.  Barris,  50 
N.  J.  L.  382. 

New  York. — Henricus  v.  Englert, 
137  N.  Y.  488,  33  N.  B.  550. 

Pennsylvania. — De  Bolle  v.  Ins. 
Co.,  4  Whart.  68. 

Rhode  Island. — Woonsocket  Rub- 
ber Co.  V.  Banigan  (R.  I.),  42  Atl. 
512. 

48.  Huckabee  v.  May,  14  Ala.  263; 
Rogers  v.  Gosnell,  51  Mo.  466;  Cos- 
ter V.  Mayor,  43  N.  Y.  399;  Hough- 
ten  V.  Milburn,  54  Wis.  554,  12  N.  W. 
23,  11  N.  W.  517. 

49.  Webster  v.  Fleming,  178  111. 
140,  52  N  E.  975,  affirming  Dean  v. 
Walker,  107  111.  540,  and  overruling 
Harms  v.  McCormick,  132  111.  104, 
22  N.  E.  511. 


50.  Connecticnt.  —  Beardsley  v. 
Hawes,  71  Conn.  39,  40  Atl.  1043. 

Massachusetts. — Sanford  v.  Allen, 
1  Cush.  473. 

Minnesota. — Dewey  v.  W.  B.  Clark 
Investment  Co.,  48  Minn.  130,  50  N. 
W.   1032. 

Nebraska.  —  Central  Investment 
Co.  V.  Miles,  56  Neb.  272. 

New  York. — First  National  Bank 
v.  Story,  200  N.  Y.  346,  93  N.  E. 
940,  reversing  131  App.  Div.  472,  115 
N.  Y.  Supp.  421. 

Pennsylvania. — McClurg  v.  Fryer, 
15  Pa.  St.  293;  McDoal  v.  Yeomans, 
8  Watts  361. 

Termont. — Wheeler  v.  Lewis,  11 
Vt.  265. 

West  Tirginia.  —  Middle  States, 
etc.,  Co.  V.  Engle,  45  W.  Va.  588. 

51.  Dillman  v.  Nadelhoffer,  160  111. 
121,  43  N.  E.  378;  Bester  v.  Walker, 
4  Gil.   (111.)   3. 


377  GUAEANTY.  §    359 

and  this  can  be  shown,  then  the  guarantor  becomes  liable  without 
suit  brought  against  the  principal.*^^ 

In  other  jurisdictions  the  guarantor  becomes  liable  only  after 
the  note  has  been  sued  upon  and  by  due  diligence  it  could  not  be 
collected.^' 

The  rule  is  that  the  guarantor  agrees  to  pay  the  debt  in  case 
it  cannot  be  collected  out  of  the  principal  debtor  by  the  exercise 
of  due  or  reasonable  diligence.  This  diligence  is  held  to  be  a  suit 
against  the  principal  debtor,  a  judgment,  issuing  of  execution 
and  its  return  unsatisfied.  But  the  better  doctrine  is  that  if  it 
can  be  shown  that  the  principal  debtor  is  insolvent,  no  suit  need 
be  brought  against  him  in  order  to  make  the  guarantor  liable. 

But  where  a  party  who  holds  a  note  secured  by  mortgage,  sells  the 
note  and  guarantees  its  collection,  and  at  the  same  time  assigns 
the  mortgage,  thereby  furnishing  the  purchaser  the  means  of  ob- 
taining paj^Tuent  of  any  part  or  the  whole  of  the  debt,  it  may  well 
be  claimed  that  the  plain  import  of  the  guarantor's  contract  is 
that  he  will  pay  the  debt,  provided  that  by  due  diligence  it  can- 
not be  collected  out  of  the  debtor  or  out  of  the  mortgage,  and  that 
he  will  not  be  held  liable  until  the  mortgage  security  has  been 
exhausted  or  resorted  to  without  avail.^* 

If  a  party  guarantees  the  pa>Tnent  of  a  debt,  it  is  absolute,  and 
he  becomes  liable  as  soon  as  it  becomes  due  and  remains  unpaid.^^ 
And  a  guarantor  upon  an  original  undertaking  is  liable  with  the 


52.  Camden  v.  Doremus,  3  How.  See,  also,  Ely  v.  Bibb,  4  J.  J. 
(U.  S.)  515,  11  L.  Ed.  705;  Thompson  Marsh.  (Ky.)  71;  Shepard  v.  Shears, 
V.     Armstrong,     Breese     (111.)     53;  35  Tex.  763. 

Stone    V.    Rockefeller,    29    Ohio    St.  54.  Borman  v.  Carhartt,  10  Mich. 

625;   First  National  Bank  v.  Story,  338;   Dewey  v.  W.  B.  Clark  Invest- 

200  N.  Y.  346,  93  N.  E.  940,  revers-  ment   Co.,   48  Minn.   130,   50   N.   W. 

ing   131    App.   Div.    472,    115    N.    Y.  1032;   Brainard  v.  Reynolds,  36  Vt. 

Supp.  421.  614;   Borden  v.  Gilbert,  13  Wis.  670. 

53.  Voorhies  v.  Atlee,  29  Iowa  49;  Compare  Jones  v.  Ashford,  79  N. 
Bosman    v.    Akeley,    39    Mich.    710;  C.  172. 

Chatham  Nat.  Bank  v.  Pratt,  135  N.  55.  Leonhardt  v.  Citizens  Bank 
Y.  423,  32  N.  E.  236;  Craig  v.  Parks,  of  Ulysses,  56  Neb.  38,  76  N.  W.  452; 
40  N.  Y.  181;  Moakley  v.  Riggs,  19  Vetter  v.  Welz  &  Zerweck,  143  App. 
Johns.  69;  Gettig  v.  Schautz,  101  Div.  (N.  Y.)  121,  127  N.  Y.  Supp. 
Wis.  229,  77  N.  W.  191;  French  v.  1069;  Canavan  Bros.  Co.  v.  Bend- 
Marsh,  29  Wis.  649.  heim,  128  N.  Y.  Supp.  435. 


§  ^60         Suretyship  and  Guaranty.  378 

principal  debtor ;  his  guaranty  is  absolute,  and  he  becomes  abso- 
lutely liable  for  breach  of  the  principal  contract. ^"^ 

Where  the  maker  of  a  note  becomes  insolvent  and  a  non-resi- 
dent before  maturity  of  the  debt,  the  payee  need  not  follow  the 
maker,  but  may  sue  the  guarantor  on  the  note  f  and  the  burden 
of  proof  is  on  the  guarantor  to  show  that  the  non-resident  had 
property  within  the  State  where  he  formerly  resided,  sufficient 
to  settle  the  debt  or  part  of  it.^^ 


§  360.  What  is  Due  Diligence, — One  class  of  cases  holds  that 
the  guarantor  agrees  to  pay  the  debt  upon  the  condition  that  the 
guarantee  should  diligently  prosecute  the  principal  debtor  with- 
out avail,  using  all  ordinary  legal  means  to  that  end,  and  exhaust 
any  security  that  he  may  have,  before  proceeding  against  the  guar- 
antor by  suit ;  that  due  diligence,  in  the  absence  of  any  special 
facts,  requires  the  institution  of  a  suit  at  the  first  regular  term 
after  maturity  of  the  obligation,  and  obtaining  of  judgment  and 
execution  thereon  as  soon  as  practicable  by  the  ordinary  rules  and 
practices  of  courts.^^  And  this  condition  is  not  satisfied  or  done 
away  with  by  proof  that  the  principal  was  insolvent  and  that  an 
action  against  him  might  have  been  fruitless.^''  However,  a  mere 
delay  to  prosecute  the  principal  for  a  short  time  is  not  sufficient  to 
negative  the  use  of  due  diligence  ;  but  such  delay  may  be  continued 
so  long  as  to  release  the  guarantor  as  a  matter  of  law.^^  Thus,  a 
delay  of  four  months  to  begin  suit  does  not  show  diligence.®^    And 


56.  Bagley  v.  Cohen,  121  Cal.  604,  Sloan,  135  N.  Y.  371,  32  N.  E.  231; 
53  Pac.  1117.  Northern  Ins.  Co.  v.  Wright,  76  N. 

See  Dwight  v.  Guanajuato  Min.  &.  Y.  445;    Getty  v.   Schautz,   101  Wis. 

Mill.  Co.,  142  App.  Div.  (N.  Y.)  354,  229,  77  N.  W.  191;  French  v.  Marsh, 

126  N.  Y.  Supp.  1083.  29  Wis.   649. 

57.  Fall  V.  Youmans,  67  Minn.  83,  61.  Yager  v.   Kentucky  Title  Co., 
69  N.  W.  697.  23  Ky.  Law  Rep.  2240,  66  S.  W.  1027; 

'68.  Fall  V.  Youraans,  67  Minn.  83,  Sherman  v.  Pedick,  35  App.  Div.  (N. 

69  N.  W.  697.  Y.)    15,  54  N.  Y.  Supp.  467;   McFar- 

.'')9.  Voorhies  v.  Atlee,  29  Iowa  49;  lane  v.  City  of  Milwaukee,  51  Wis. 

Chatham    Nat.    Bank    v.    Pratt,    135  691,  8  N.  W.  728;   Day  v.  Elmore,  4 

N.   Y.    423,   32   N.   B.    236;    Getty   v.  Wis.  190. 

Schautz,  101  Wis.  229,  77  N.  W.  191.  C2.  Chatham   Nat.   Bank   v,   Pratt, 

60.  Salt     Springs     Nat.     Bank    v.  135  N.  Y.  423,  32  N.  E.  236. 


37d  GuAfiANTY.  §    361 

a  failure  to  sue  promptly  for  each  installment  of  interest  when 
due,  will  operate  to  discharge  the  guarantor  as  to  such  interest.*^ 
When  the  legal  holder  relies  on  diligence  by  action,  he  must 
institute  suit  against  the  debtor  at  the  first  term  of  the  proper 
•court  after  action  has  accrued,  and  must  prosecute  such  proceed- 
ings to  judgment  and  execution  at  the  earliest  period  within  his 
power,  and  if  any  delay  is  had  in  obtaining  judgment,  such  result 
must  not  grow  out  of  his  consent  or  his  knowledge.  In  those 
States  where  the  obligee  is  not  required  to  bring  suit  on  account 
of  the  insolvency  of  the  debtor,  it  is  a  condition  precedent  to  the 
recovery  against  the  guarantor,  that  the  obligee  shows  such  in- 
fiolvency.®'* 

§  361.  Discharge  of  Guarantor. — The  general  rule  is  if  the 
creditor  does  an  act  which  injures  the  guarantor  or  his  rights,  or 
fails  to  do  an  act  which  his  duty  enjoins  upon  him,  and  such  omis- 
sion injures  the  guarantor,  he  is  discharged;  and  he  is  released 
from  liability  whenever  the  terms  of  the  contract  have  been  ma- 
terially altered,  for  a  guarantor,  like  a  surety,  may  stand  upon  the 
very  terms  of  his  undertaking.®^  The  change  of  time  of  perform- 
ance of  the  contract  without  his  consent  will  discharge  him.®®  So 
where  bonds  are  guarantied  to  be  paid  at  a  certain  time,  the  guar- 
antor is  not  liable  until  that  time  arrives,  though  the  principal 
may  be  liable  before.®^  And  a  dissolution  of  a  firm  to  whom  the 
guaranty  is  addressed,  will  work  a  revocation.®^  And  whenever 
the  debt  is  satisfied,  either  by  payment  in  money  or  by  property, 
the  guarantor  is  discharged.®^ 

63.  Sherman  v.  Pedrick,  35  App.  67.  Union  Trust  Co.  v.  Detroit 
Div.   (N.  Y.)   15,  54  N.  Y.  Supp.  467.    Motor  Co.,  117  Mich.  631,  76  N.  W. 

64.  Dillman    v.    Nadelhoffer,    160    112. 

111.  121,  43  N.  E.  378.  68.  Byers  v.  Hickman  Grain  Co., 

65.  Holmes  v.  Williams,  177  111.  112  Iowa  451,  84  N.  W.  500;  Schoon- 
586,  53  N.  E.  93;  Black's  Appeal,  83  over  v.  Osborne,  108  Iowa  453,  79 
Mich.    513,    47    N.    W.    342;    Cambia  N.  W.  263. 

Iron  Works  v.  Keynes,  56  Ohio  St.  Dissolution     of    corporation     re- 

501,  47  N.  B.  548;   Boalt  v.  Brown,  leases  guarantor.     Mason  v.  Stand- 

13  Ohio  St.  364.  ard  Distilling  &  Distributing  Co.,  85 

66.  Newman  v.  King,  54  Ohio  St.  App.  Div.  (N.  Y.)  520,  83  N.  Y.  Supp. 
273,  43  N.  E.  683.  343. 

As  to  discharge  by  extension  of  69.  Carson  v.  Reid,  137  Cal.  253, 
time  see  §  363  herein.  70  Pac.  89;   Stanford  v.  Coram,  26 


§  362 


SUEETYSHIP  AND  GuAKANTY. 


38a 


But  it  is  decided  that  a  person  can  not  be  deprived  of  the  benefits 
of  a  guaranty  by  acts  done  without  his  consent  or  acquiescence.™ 
And  want  of  consideration  as  to  one  of  two  guarantors  will  not 
relieve  the  other  from  liability. ^^  Nor  will  the  fact  that  payments 
by  the  debtor  were  not  applied  in  reduction  of  the  indebtedness 
which  was  guaranteed  affect  the  liability  of  the  guarantor  under 
whose  direction  the  application,  was  made.'^ 

§  362.     Discharge  by  Change  in  the  Principal  Contract. — Any 

material  alteration  in  the  contract  of  guaranty  discharges  the  guar- 
antor.^^ And  so  a  guarantor  is  entitled  to  the  benefit  of  a  security 
given  by  his  principal,  and  if  it  is  surrendered  without  his  con- 
sent he  is  released.'*  But  the  change  in  the  form  of  the  debt 
does  not  injure  the  guarantor.  Thus,  the  change  of  part  of  an 
account  into  notes  does  not  aifect  the  liability  of  the  guarantor.^"* 


Mont.  285,  67  Pac.  1005;  Brown  v. 
Mason,  55  App.  Div.  (N.  Y.)  395,  66 
N.  Y.  Supp.  917;  Taylor  v.  Simpkins, 
38  Misc.  R.  (N.  Y.)  246,  77  N.  Y. 
Supp.  591;  Rudolph  v.  Hewitt,  11 
S.  D.  646,  80  N.  W.  133. 

Acceptance  of  notes  without  the 
consent  of  the  guarantor  discharges 
him.  Fritz  v.  Monakad,  135  App. 
Div.  (N.  Y.)  689,  120  N.  Y.  Supp. 
329;  Rosenberg  v.  Kloffer,  117  N.  Y. 
Supp.   102. 

Compare  People's  Bank  v.  Stew- 
art, 152  Mo.  App.  314,  133  S.  W.  70. 

But. a  note  signed  by  the  principal 
and  guarantor  is  held  not  to  release 
the  latter.  McFarlane  v.  Wadhams, 
176  Fed.  82,  99  C.  C.  A.  602,  rev'g 
165  Fed.  987. 

70.  Canavan  Bros.  Co.  v.  Bend- 
heim,  128  N.  Y.  Supp.  435. 

71.  Crump  v.  J.  F.  Case  Thresh- 
ing Machine  Co.,  136  Ky.  60,  123  S. 
W.  333. 

72.  Desserich  v.  Meile  &  Heaney 
Mfg.  Co.,  48  Colo.  370,  109  Pac.  949. 

7.3.  Georgia. — Mutual  Loan  & 
Banking  Co.  v.  Hope,  112  Ga.  729,  38 
S.  B.  63. 


Illinois. — Pahlman  v.  Taylor,  75 
111.   629. 

Indiana. — State  v.  Pepper,  31  Ind. 
76. 

loTva. — Marsh  v.  Griffin,  42  Iowa 
403. 

Michigan. — Tolman  v.  Griffins,  111 
Mich.  301,  69  N.  W.  649. 

Ohio.— Boalt  V.  Brown,  13  Ohio  St. 
364. 

Pennsylyania. — Fulman  v.  Seitz, 
68  Pa.  St.  237. 

As  to  change  of  principal  contract 
as  affecting  surety  see  §§  100,  101 
herein. 

A  guaranty  is  not  affected  by  a 
change  in  the  original  contract 
where  there  was  no  limitation  in 
the  guaranty  as  to  terms  or  agree- 
ments between  the  parties.  Peoria 
Rubber  Mfg.  Co.  v.  Deering,  85  Mo. 
App.  131. 

74.  Foerderer  v.  Moors,  91  Fed. 
476. 

75.  Norton  v.  Eastman,  4  Me.  521; 
Lennox  v.  Murphy,  171  Mass.  370,. 
50  N.  E.  644. 


381  Guaranty.  §  362 

And  so  if  the  change  is  void  for  want  of  consideration,  it  does 
not  affect  the  guarantor,  and  he  is  not  discharged.^" 

If  the  guarantor's  liability  is  increased  by  a  subsequent  agree- 
ment, he  is  discharged.  Thus,  where  he  guarantees  the  fidelity  of 
an  agent  w^orking  as  salesman  in  a  limited  territory,  and  without 
his  consent  the  territory  is  increased,  he  is  discharged,  and  he  is 
not  liable  for  defaults  of  the  agent  after  such  increase." 

But  a  guarantor  is  not  released  by  a  collateral  agreement  to 
the  original  contract  by  his  principal,  which  alters  no  provision 
of  the  original  contract  or  any  obligation  growing  out  of  it;^^  nor 
by  an  additional  contract;'^  nor  because  the  obligee  takes  addi- 
tional security  from  the  principal.^"  Changing  the  contract  so  as 
to  include  interest  will  release  the  guarantor,^^  or  a  change  in  the 
form  of  the  obligation,^^  or  giving  credit  in  case  of  the  guaranty,*^ 
or  change  in  building  contract,^*  or  by  the  delivery  of  goods  in- 
stead of  money,^^  or  by  the  misapplication  of  the  guaranty  to  pay 
existing  debt,^^  or  by  giving  another  note  in  the  place  of  the  one 
guaranteed,^^  or  by  accepting  notes  other  than  those  guaranteed.^^ 
If  the  same  kinds  of  goods  with  same  price  are  accepted,  the  guar- 
antor is  not  released.^^ 

§  363.  Discharge  by  Extension  of  Time. — In  order  that  a 
guarantor  may  be  discharged  by  the  extension  of  time,  there 
must  be  a  binding  agreement  between  the  creditor  and  the  prin- 

76.  Slaughter  v.  Moore,  17  Tex.  82.  Burch  v.  De  Rivera,  53  Hun 
Civ.  App.  233,  42  S.  W.  372.  (N.  Y.)   367,  6  N.  Y.  Supp.  206. 

77.  Plunkett  v.  Davis,  Machine  83.  Kimball  W.  W.  Co.  v.  Baker, 
Co.,  84  Md.  529,  36  Atl.  115.  62  Wis.  526,  22  N.  W.  730. 

78.  Morrill  v.  Baggott,  157  111.  Compare  Fisk  v.  Stone,  6  Dak.  35. 
240,  41  N.  E.  639.  84.  Judah  v.  Zimmerman,  22  Ind. 

79.  Robertson  v.  Sully,  2  App.  Div.  388. 

(N.  Y.)  152,  37  N.  Y.  Supp.  935.  Changes  in  building  contracts  as 

80.  Calbrera  v.  American  Colonial  affecting  surety  see  §§  112a,  112b, 
Bank,  214  U.  S.  224,  29  Sup.  Ct.  623,    112c,  herein. 

53  L.  Ed.  974 ;  Trustees  of  the  Pres-  85.  Wright   v.    Johnson,   8    Wend. 

hyterian   Board   of  Publication   and  (N.  Y.)  512. 

Sabbath    School   Work   v.   Gilliford,  86.  Glyn  v.  Hertel,  8  Taunt.  208. 

139  Ind.  524,  38  N.  E.  404;  Hill  Mer-  87.  Weed  v.  Grant,  30  Conn.  74. 

cantile    Co.    v.    Rotan    Grocery    Co.  88.  Davis  Sew.   Mach.  Co.  v.  Mc- 

(Tex.    Civ.    App.    1910),    127    S.    W.  Ginnis,  45  Iowa  538. 

1080.  89.  Quinn  v.  Moss,  45  Neb.  614,  63 

81.  Springer  Litho.  Co.  v.  Wavey,  N.  W.  931. 
97  Cal.  30. 


§  363 


SUEETYSHIP  AND  GuAKANTY. 


382- 


cipal  entered  into  without  the  consent  of  the  guarantor,  founded 
upon  a  valuable  consideration,  for  the  extension  of  the  time  for 
a  definite  period.^"  A  mere  delay  of  the  creditor,  when  he  is  not 
bound  to  act  with  promptness,  in  enforcing  payment  will  not  dis- 
charge the  guarantor. ^^  If  the  guarantor  agrees  to  the  extension, 
he  is  held  liable.^^  If  the  contract  is  valid,  it  is  immaterial  whether 
the  guarantor  is  actually  injured  by  the  extension  of  the  time  of 
payment  of  the  debt,  for  the  benefit  of  the  maker ;  the  rule  as  to 
a  guarantor  is  the  same  as  that  applicable  to  a  surety.^^ 

A  guarantor  may  be  released  by  extension  of  time  of  pa\Tnent 
or  shortening  of  time.®*  The  extension  must  be  definite  and  separ- 
ate from  the  principal  contract,®^  and  founded  upon  a  sufficient 
consideration,®''  and  for  a  definite  time.®^ 


90.  Dodson  v.  Henderson,  113  111. 
360;  Many,  Blanc  &  Co.  v.  Jacobson, 
149  111.  App.  240;  Dixon  v.  Spencer, 
59  Md.  246. 

Extension  of  time  of  payment  as 
affecting  surety  see  §§  113  et.  seq. 
herein. 

Does  not  release  for  liability  in- 
curred for  work  done  before  exten- 
sion granted.  O'Brien  v.  Champlain 
Construction  Co.  (U.  S.  C.  C),  107 
Fed.  338. 

In  case  of  a  continuing  guaranty 
an  extension  of  time  does  not  re- 
lease. Hartwell  &  Richards  Co.  v. 
Moss,  22  R.  I.  583,  48  Atl.  941. 

An  extension  of  time  does  not  re- 
lease where  the  period  of  extension 
does  not  extend  to  the  end  of  the 
period  stipulated  for  in  the  guar- 
anty. Alger  V.  Alger,  83  App.  Div. 
(N.  Y.)   168,  82  N'.  Y.  Supp.  523. 

91.  English  v.  Landon,  181  111.  614, 
54  X.  E.  911;  Pittsburg,  etc.,  R.  R. 
Co.  V.  Shaeffer,  59  Pa.  St.  350;  Senti- 
nel Co.  V.  Smith,  143  Wis.  377,  127 
N.  W.  943. 

92.  Harvey  v.  First  Nat.  Bank,  56 
Neb.  320,  76  N.  W.  870. 

Extension  with  consent  of  surety 
see  §  117  herein. 


93.  Chicago,  etc.,  Bank  v.  Black, 
72  111.  App.  147. 

94.  Illinois.— Loeff  v.  Taussig,  102 
111.  App.  398. 

Massachusetts.  —  Lascelles  v. 
Clark,  204  Mass.  362,  90  N.  E.  875. 

Nebraska.  —  Ruston  v.  Dierks 
Lumber  Co.  (Neb.  1902),  89  N.  W. 
616. 

]Vew  York. — Antisdel  v.  William- 
son, 165  N.  Y.  372,  59  N.  E.  207,  aff'g 
55  N.  Y.  Supp.  1028;  Leeds  v.  Dunn, 
10  N.  Y.  469;  Wolrath  v.  Thompson, 
6  Hill  540. 

North  Dakota. — Northern  State 
Bank  of  Grand  Forks  v.  Bellamy, 
19  N.  D.  509,  125  N.  W.  888. 

95.  Campbell  v.  Baker,  46  Pa.  St. 
243. 

96.  Tatum  v.  Morgan,  108  Ga.  336, 
33  S.  E.  940;  Many,  Blanc  &  Co.  v. 
Jacobson,  149  111.  App.  240;  Hayes 
V.  Wells,  34  Md.  512;  Robinson  v. 
Wells,  38  Wis.  330. 

Consideration  for  extension  of 
time  discharging  surety  see  §  114 
herein. 

97.  Many,  Blanc  &  Co.  v.  Jacob- 
son,  149  111.  App.  240;  Jarvis  v. 
Hyatt,  43  Ind.  163. 

See  sec.  42  et  seq. 


383  Guaranty.  §§  364, 365- 

§  364.  Discharge  by  Release  or  Negligent  Loss  of  Securities. 
— Where  a  guarantor  is  entitled  to  the  benefit  of  security  given 
by  the  principal  debtor  to  the  creditor,  a  release  or  negligent  loss 
of  such  security  by  the  creditor  will  discharge  the  guarantor  pro 
tanto.^^  Because  the  creditor  must  first  resort  to  the  securities  for 
payment  by  exercising  due  diligence,^®  in  order  that  the  guarantor 
can  have  the  benefit  of  such  collaterals/  If,  however,  the  guar- 
antor consents  to  a  relinquishment  by  the  obligee  of  such  security, 
he  is  not  discharged  from  liability.^  The  assignee  of  such  guar- 
anteed note  is  under  no  obligation  to  protect  the  guarantor  by  re- 
sorting to  the  property  pledged  as  security  for  the  debt,  which 
was  never  in  the  assignee's  possession  or  control.^  And  if  the  as- 
signee who  has  exhausted  the  mortgaged  property  when  the  debt 
is  due  by  legal  process  and  appropriates  the  amount  received  on 
the  debt,  he  discharges  his  duty  to  the  guarantor  of  the  debt,  what- 
ever may  have  been  received  by  the  assignee.'* 

Upon  an  absolute  guaranty  the  creditor  owes  no  duty  to  the 
guarantor  except  to  act  in  good  faith  and  not  to  be  guilty  of  laches 
to  his  prejudice.^  So  an  assignee  and  guarantor  of  a  note  and 
mortgage  cannot  be  discharged  from  liability  by  the  release  of 
the  mortgage  by  mistake,  where  the  release  has  been  corrected, 
and  the  mortgage  is  still  a  valid  lien  on  the  property  as  against 
the  mortgagor.® 

§  365.  By  Fraud  and  Duress. — The  guarantor  may  be  dis- 
charged by  fraud  and  duress  on  the  part  of  the  guarantee  at  the 

Extension  must  be  for  a  time  cer-  1.  Holmes    v.    Williams,    177    111. 

tain  to  discharge  surety,  see  §  119  386,  53  N.  E.  93;  Fuller  v.  Tomlin- 

herein.  son,  58  Iowa  111,  12  N.  W.  127. 

98.  Foerderer  v.  Moors,  91  Fed.  2.  Darnell  v.  Dolan  (Tex.  Civ. 
476;   Batcheldor  v.  Jennings,  83  111.  App.  1910),  132  S.  W.  857. 

App.  569.  3.  Blanding   v.   Wilson,   107   Iowa 

Discharge   of    surety   by    acts   of  46,  77  N.  W.  508;  Fuller  v.  Tomlin- 

obligee  as  to   security,  see   §§   130,  son,  58  Iowa  111,  12  N.  W.  127. 

132  herein.  4.  Holmes    v.    Williams,    177    111. 

If   the   agreement   to    release   is  386,  53  N.  E.  93. 

nndum  factum  a  co-guarantor  is  not  5.  Hubbard  v.  Haley,  96  Wis.  578, 

released.     Commercial   &   Farmers'  71  N.  W.  1036. 

Nat.  Bank  v.  McCormick,  97  Md.  703,  6.  Kane  v.  Williams,  99  Wis.  65, 

55  Atl.  439.  74  N.  W.  570. 

99.  Middle     States,     etc.,     Co.     v. 
Engle,  45  W.  Va.  588. 


§  3G6  Suretyship  and  Guaranty.  38-i 

inception  of  the  contract.  But  where  the  guarantor  knows  that 
the  undertaking  of  his  principal  is  liable  to  be  defeated,  he  must 
be  considered  as  entering  into  it  with  reference  to  such  contin- 
gency and,  of  course,  will  be  held  on  his  guaranty.^  But  unless 
fraud  is  clearly  shown,  the  guarantor  is  not  affected  by  the  in- 
validity of  the  original  obligation.^ 

Where  a  party  assigns  an  instrument  and  guaranties  it,  he  can- 
not show  that  the  instrument  is  invalid.^ 

If  the  guarantor  is  induced  by  fraud  to  guaranty  the  contract 
by  the  other  parties,  he  is  not  liable  ■,^^  but  if  the  guarantee  is  an 
innocent  party,  the  fraud  of  the  principal  will  not  avoid  the  guar- 
anty.^^ 

§  366.  Guaranty  Covers  Defects  in  the  Original  Contract — 
Failure  of  Consideration. — A  guaranty  of  a  defective  contract  is 
valid.  Thus,  where  the  debt  is  justly  owing,  the  guarantor  is  liable, 
though  through  some  defect  or  incapacity  of  the  principal  the  debt 
could  not  be  enforced  against  the  latter.^^  So  a  guarantee  of  a 
lease  is  valid,  though  only  one  of  two  lessees  executed  the  lease.^* 
So  the  guarantor  of  a  note  purporting  to  be  made  by  two,  where 
the  signature  of  one  is  unauthorized,  is  liable.^*  And  he  is  like- 
wise liable  in  the  case  of  a  check  though  the  name  of  the  payee  was 
indorsed  thereon  without  authority.^^    And  a  gaurantor  is  not  re- 

7.  Sterns  v.  Marks,  35  Barb.  (N.  Wisconsin. — New  Home  Sewing 
Y.)  565.  Maeh.  Co.  v.  Simon,  104  Wis.  120,  80 

Duress  as  a  discharge  of  surety,    N.  W.  71. 
see  §  32  herein.  Fraud    to   induce   surety   to   sign 

8.  Purdy  v.   Peters,  35  Barb.    (N.    contract,  see  §  126  herein. 

Y.)  239.  11.  Anderson  v.  Warne,  71  111.  20; 

9.  Zabriskie  v.  Railroad  Co.,  23  Powers  v.  Clarke,  127  N.  Y.  417,  28 
How.  (U.  S.)  381,  399,  16  L.  Ed.  488;     N.  E.  402. 

Remsen  v.  Graves,  41  N.  Y.  475;  12.  Erwin  v.  Downs,  15  N.  Y.  576. 
Erwin  v.  Downs,  15  N.  Y.  576.  13.  McLaughlin    v.    McGovern,    34 

10.  Indiana.— Morrison    v.    Schle-    Barb.  (N.  Y.)  ?08. 

singer,  10  Ind.  App.  665.  14.  Sterns  v.' Marks,  35  Barb.  (N. 

Penusjivania. — Strouse  v.  Querns,  Y.)   565. 

22  Pa.  Super.  Ct.  6.  Bound  ))y  a  forged  indorsement. 

Utah.— Jungk  v.  Reed,  9  Utah  49,  Pennsylvania  Trust  Co.  v.  McElroy, 

33  Pac.  236.  112  Fed.  509,  50  C.  C.  A.  371. 

Washington. — Rathbone,    Sard    &  15.  Boardman  v.  Hanna  (U.  S.  C. 

Co.  V.  Frost,  9  Wash.  162,  37  Pac.  C),  164  Fed.  527,  affirmed  McKin- 
.298. 


585 


GUAEAUTY. 


§§367,368 


leased  by  a  false  recital  in  the  guaranty.  ^^  If  the  contract  be- 
comes invalid  for  want  of  consideration,  then  the  guarantor  is  re- 
leased/' 

§  367.  Revocation  of  a  Continuing  Guaranty. — Unless  the 
terms  of  a  continuing  guaranty  forbid,  it  may  be  revoked  on 
notice/^  Such  guaranty  is  revocable  at  the  pleasure  of  the  guar- 
antor unless  made  to  cover  some  specific  transaction  which  is  noi 
exhausted,  or  unless  it  be  founded  upon  a  continuing  considera- 
tion, the  benefit  of  which  the  guarantor  cannot  or  does  not  re- 
nounce/^ And  the  fact  that  the  instrument  is  under  seal  cannot 
-change  this  rule.^" 

§  368.  Death  of  Guarantor. — The  effect  of  the  death  of  the 
guarantor  upon  a  contining  guaranty  has  been  determined  differ- 
ently by  different  courts.  In  some  jurisdictions  the  death  is  held 
to  work  a  revocation  of  the  guaranty.  The  guarantor's  estate  is 
held  bound  in  contracts  upon  which  the  liability  exists  at  the  time 
of  his  death,  although  it  may  depend  upon  future  contingencies. 
'Bhit  it  is  not  held  for  liability  which  is  created  after  his  death 
hj  the  exercise  of  a  power  or  authority  which  he  might  at  any 
time  revoke.^^ 


non  V.  Boardman,  170  Fed.  920,  96  C. 
C.  A.   136. 

Compare  National  Bank  of  Rolla 
v.  First  National  Bank,  141  Mo.  App. 
719,  125  S.  W.  513. 

16.  Darnell  v.  Dolan  (Tex.  Civ. 
App.  1910),  132  S.  W.  157. 

17.  Illinois. — Harvey  v.  Laurie,  13 
111.  App.  400. 

Kentucky. — Walter  A.  Wood  Mow- 
ing &  Reaping  Machine  Co.  v.  Land, 
S8  Ky.  516,  32  S.  W.  607. 

New  York. — Sawyer  v.  Chambers, 
43  Barb.  622. 

South  Carolina. — Carroll  County 
Savings  Bank  v.  Strother,  28  S.  C. 
604. 

Engfland. — Cooper  v.  Joel,  1  De  G. 
P.  &  J.  240. 

18.  California.  —  White      Sewing 

25 


Mach.  Co.  V.  Courtney,  141  Cal.  674, 
75  Pac.  296. 

Connecticnt. — Gay  v.  Ward,  67 
Conn.  147,  34  Atl.  1025. 

Massachusetts. — Jordan  v.  Dob- 
bins, 122  Mass.  168. 

New  York. — Agawam  Bank  v. 
Strever,  18  N.  Y.  502. 

England. — Coulthart  v.  Clement- 
son,  5  Q.  B.  D.  42. 

19.  Allen  v.  Kenning,  9  Bing.  618; 
Offord  v.  Davies,  12  C.  B.,  N.  S.  748. 

20.  Jordan  v.  Dobbins,  122  Mass. 
168;  Offord  v.  Davies,  12  C.  B.,  N.  S. 
748;  Burgess  v.  Eve,  L.  R.  13  Eq. 
450. 

21.  Aitkin  v.  Lang  Adm'r,  106  Ky. 
652,  51  S.  W.  154;  Hyland  v.  Hobish, 
150  Mass.  112,  22  N.  E.  765;  Jordan 
V.  Dobbins,  122  Mass.  168;  National 


§  369  Suretyship  and  Guaeanty.  386 

But  in  other  jurisdictions  death  does  not  revoke  a  continuing 
guaranty,  because  it  is  not  a  mere  mandate  or  authority  invoked 
ipso  facto  by  the  death  of  the  guarantor;  notice  must  be  given 
of  it  in  order  to  revoke  such  guaranty.^^  Giving  notice  of  death 
brings  that  fact  within  the  knowledge  of  the  guarantee,  and  is 
therefore  a  proper  and  sufficient  notice  to  revoke  the  guaranty,^^ 
and  if  the  executor  is  not  empowered  to  continue  the  guaranty, 
the  guaranty  is  withdrawn."*  But  where  the  guarantor  binds  not 
only  himself,  but  his  representatives,  and  representatives  include 
his  executor,  then  notice  only  of  the  death  of  the  guarantor  is  not 
sufficient,  and  the  estate  is  liable  for  indebtedness  incurred  by  the 
principal  debtor  after  the  guarantor's  death,  because  the  guarantee 
was  entitled  to  rely  on  the  express  provisions  of  the  contract  with 
him,  and  can  not  be  bound  to  take  notice  of  the  guarantor's  death 
as  notice  from  his  executor  to  determine  the  liability ;  to  absolve 
the  estate  from  further  liability,  the  executor  should  have  also 
acted  in  his  fiduciary  capacity,  and  withdrew  the  continuing  guar- 
anty.2^ 

§  369.  Release  of  Co-Guarantor. — A  release  of  a  joint  co- 
guarantor  without  the  consent  of  the  other  guarantors  will  release 
them.  So  where  one  of  several  joint  obligors  withdraws  from  the 
undertaking  before  the  delivery  of  the  instrument,  and  it  is  not 
known  by  the  other  joint  obligors,  and  the  guarantee  knowingly 
accepts  such  contract,  the  other  co-guarantors  are  released.^®  One 
reason  why  a  release  of  one  of  several  joint  co-obligors  discharges 
all,  is  that  by  such  release  the  right  of  contribution  is  cut  off.^^ 

Eagle  Bank  v.  Hunt,  16  R.   I.   148,  Fawcett,  L.  R.  15  Eq.  311;  Coulthart 

13  Atl.  115.  V.  Clementson,  5  Q.  B.  D.  42. 

22.  Gay  v.  Ward,  67  Conn.  147,  34  24.  In  re  Silvester  (1895),  1  Ch. 
Atl.  1025;  Coulthart  v.  Clementson,  573.  This  case  criticises  Coulthart 
5  O.  B.  D.  42.  V.  Clementson,  5  Q.  B.  D.  42,  which 

Death    does    not    release    where  holds     that    the     guarantor's     will 

lETUaranty  is  a  continuing  one  where  should   be  constructive  notice   that 

there  is  no  provision  to  that  effect,  the  guaranty  is  revoked  both  as  to 

In  re  Grace,  71  Law  J.,    ch.  358,  86  the  guarantor  and  his  executor. 

Law  T.  144.  26.  Potter    v.    Gronbeck,    117    111. 

23.  Gay  v.  Ward,  67  Conn.  147;  34  404,  7  N.  E.  586. 

Atl.  1025.  27.  Clark  v.  Mallory,  83  111.  App. 

24.  National  Eagle  Bank  v.  Hunt,    488,  185  111.  227,  56  N.  E.  1099. 
16  R.  I.  148,  13  Atl.  115;  Harriss  v. 


387  Guaranty.  §§  370,371 

§  370.  What  Law  Governs. — It  is  a  general  rule  that  the 
lex  loci  contractus  determines  the  nature  and  legal  quality  of  the 
act  done,  whether  it  constitutes  a  contract,  the  nature  and  validity, 
the  obligation  and  legal  effect  of  such  contract,  and  furnishes  the 
rule  of  construction  and  interpretation.^^  'So  the  law  of  the  State 
where  the  contract  is  executed,  when  its  performance  is  guar- 
anteed, and  where  the  contract  is  to  be  performed,  determines 
the  validity  of  the  guaranty,  although  suit  is  to  be  enforced  in 
another  State.^^  So  where  a  foreign  corporation  is  unlicensed 
and  doing  business  in  a  State  in  violation  of  its  laws,  a  contract 
of  guaranty  entered  into  by  it  is  held  void.^''  And  so  where  a  con- 
tract is  executed  in  a  State  in  which  it  is  valid,  and  a  person  then 
agrees  to  guarantee  its  performance,  the  guaranty  is  valid, 
though  it  is  actually  affixed  in  a  State  in  which  the  contract  is 
void.^^  So  a  contract  of  guaranty  executed  in  one  State  of  the 
performance  of  a  contract  which  is  to  be  performed  there,  is  gov- 
erned by  the  laws  of  that  State,  though  the  guaranty  is  made  else- 
where.^^ Thus,  the  law  of  'the  place  where  a  letter  of  credit  is 
executed,  and  where  the  drafts  made  in  pursuance  thereof  are 
payable,  governs  the  obligation  of  those  who  sign  the  letter. ^^ 

§  371.  Statute  of  Limitations. — The  statute  of  limitations  be- 
gins to  run  in  favor  of  the  guarantor  from  the  time  he  is  liable 
to  suit,  and  this  may  or  may  not  be  the  same  time  the  principal's 
debt  becomes  due.^*  At  common  law  a  payment  made  upon  a  note 
by  the  principal  debtor  before  the  completion  of  the  bar  of  the 
statute  served  to  keep  the  debt  alive  both  as  to  himself  and  the 
surety  or  guarantor.^^    This  is  the  rule  in  the  United  States  where 

28.  Carnegie  v.  Morrison,  2  Met.  77;  Cross  v.  Petree,  10  B.  Mon.  (Ky.) 
397.  41?,. 

29.  McFarlane    v.    Wadham^,    176  38.  Bissell  v.  Lewis,  4  Mirh.  450. 
Fed.  82,  99  C.  C.  A.   602,   rev's:  16.5  34.  Hooper  v.  Hooper,  81  Md.  155; 
Fed.  987;   Bond  v.  Farwell  Co.,  172  State  Bank  v.   Knotts,   10   Rich.   L. 
Fed.  58,  96  C.  C.  A.  546;   Russell  v.  (S.   C.)    543;    Wofford  v.   Unger,   55 
Burk,  14  Vt.  147.  Tex.  480. 

30.  United  States  Gypsum  Co.  v.  35.  Marnizinger  v.  Mohr,  41  Mich. 
Central  Railway  &  Equipment  Co.,  685;  Whitcomb  v.  Whiting,  2  Doug. 
152  111.  Anp.  467.  652;  Burleigh  v.  Stott,  8  B.  &  C.  36; 

.•^l.  Richter  v.  Frank,  41  Fed.  859.    Wyatt  v.  Hodson,  8  Bing.  309. 
32.  Cowles   V.   Townsend,  37   Ala. 


§  371  Suretyship  and  Guaranty.  388 

it  has  not  been  changed  bv  the  statute."®  At  common  law  and  in 
those  States  where  the  common  hiw  prevails,  a  distinction  is  made 
between  those  cases  in  which  a  part  payment  is  by  one  of  several 
promisors  of  a  note  ly^fore  the  statute  of  limitations  has  attached, 
and  those  in  which  payment  is  made  after  the  completion  of  the 
bar  of  the  statute ;  it  being  held  in  the  former  that  the  debt  is 
kept  alive  as  to  all,  and  in  the  latter  that  it  is  revived  only  to  the 
party  making  the  payment."'  iSo  under  the  common  law  rule,  part 
payment  by  one  of  several  joint  debtors  of  a  debt  barred  by  limita- 
tion, revives  the  debt  as  to  him,  and  forms  a  new  point  from  which 
the  statute  begins  to  run,  but  does  not  revive  it  as  against  the  other 
joint  debtors  or  guarantors.^^  The  reason  of  this  rule  lies  in  the 
principle  that  by  withdrawing  from  a  joint  debtor  the  protection 
of  the  statute,  he  is  subject  to  a  new  liability  not  created  by  the 
original  contract  of  indebtedness,  and  so  cannot  be  held  by  the 
act  of  his  co-debtor. 

Where  the  guaranty  is  a  continuing  one,  on  which  loans  are 
made  from  time  to  time,  the  statute  of  limitations  does  not  begin 
to  run  in  favor  of  the  guarantor  until  default  of  payment  is 
made.^^  And  it  seems  that  where  the  guaranty  is  limited  to  a 
single  transaction,  the  statute  begins  to  run  in  favor  of  the  guar- 
jantor  from  the  time  when  the  guaranty  is  executed.*" 

In  case  of  a  guaranty  of  a  signature  which  is  forged,  such  guar- 
anty is  broken  when  made,  and  the  right  of  action  accrues  at  once, 
arid  therefore  the  statute  begins  to  run  at  the  same  time.*^ 

A  guaranty  of  a  barred  debt  is  enforceable.*^  After  the  prin- 
cipal contract  has  been  barred,  no  acknowledgment  of  it  by  the 

36.  Quimby  V.  Putnam,  28  Me.  419;  England.— Atkins  v.  Tredgold,  2 
National  Bank  of  Delavan  v.  Cotton,    B.  &  C.  23. 

53  Wis.  31,  9  N.  W.  926.  38.  Borden  v.  Peay,  20  Ark.  293. 

37.  Arkansas. — Biscoe  v.  Jenkins,  39.  State  Bank  v.  Knotts,  10  Rich. 
5  Eng.  108.  L.   (S.  C.)   543. 

Kentncky. — Kimball   v.   Cummins,  40.  Sollee  v.  Mengy,  Bailey  L.  (S. 

3  Mete.  327.  C.)   620. 

Maryland. — Hooper  v.  Hooper,  81  41.  Lehigh  Coal,  etc.,  Co.  v.  Blake- 

Md.  155,  31  Atl.  508;  Elliott  v.  Nich-  lee,  7  Pa.  Dist.  32. 

oils,  7  Gill.  72.  42.  Shadburne  v.  Daly,  76  Cal.  355, 

Massachnsetts.  —  Sigourney       v.  18    Pac.   403;    Miles   v.   Linnell,   97 

Drury,  14  Pick.  387.  Mass.   298;    Flack  v.  Neill,  22   Tex. 

253. 


389  GUAEANTY.  §    372 

principal  can  take  it  out  of  the  statute  of  limitations  as  to  the 
guarantor.  The  acts  of  the  principal  in  such  case  has  no  more 
effect  on  the  guarantor  than  the  acts  of  a  stranger/^ 

§  372.  Payment  of  Debt  by  Guarantor. — If  the  guarantor  has 
to  pay  the  debt  when  due  he  has  an  immediate  right  of  action 
against  the  principal.**  And  after  he  has  paid  the  debt,  pay- 
ment by  the  principal  to  another  co-guarantor  will  not  release  the 
principal  from  his  obligation  to  pay  the  guarantor  making  the 
payment.*^  And  if  the  guarantor  has  paid  a  debt  guaranteed  ver- 
bally, he  can  recover  against  the  principal,  and  the  statute  of 
frauds  will  be  no  defense  to  such  action,  although  it  would  be  a 
defense  to  an  action  brought  on  the  guaranty;*^  the  statute  can 
have  no  operation  as  between  the  original  debtor  and  his  guar- 
antor." 

Where,  however,  a  guarantor  pays  the  amount  of  his  obligation 
to  the  debtor  instructing  him  to  pay  it  to  the  creditor,  of  which 
fact  the  latter  has  no  knowledge,  the  guarantor  will  not  be  released 
where  the  debtor  does  not  pay  it  as  directed.*^  It  is  presumed 
where  a  guarantor  makes  a  payment  on  the  account  of  his  prin- 
cipal that  he  does  it  at  the  latter's  request.*^ 

43.  Meade  v.  McDowell,  5  Bing.  47.  Godden  v.  Plerson,  42  Ala. 
(Pa.)   195.  370;    Ames    v.    Jackson,    115    Mass. 

44.  Cotton  V.  Alexander,  32  Kan.  512;  Cahill  v.  Bigelow,  18  Pick. 
339,  4  Pac.  259;  Kimmel  v.  Lowe,  (Mass.)  369;  Lee  v.  Stowe,  57  Tex. 
28  Minn.  265.  444. 

45.  Lowry  v.  Bank,  2  Watts  &  S.  48.  Peoples'  Bank  v.  Stewart,  152 
(Pa.)   210.  Mo.  App.  314,  133  S.  W.  70. 

See,  also.  Slaughter  v.  Moore,  17  4^,  Blanchard    v.    Blanchard,    133 

Tex.  Civ.  App.  233.  App.    Div.    (N.    Y.)    937,    118    N.    Y. 

46.  Beal  v.  Brown,  13  Allen  Supp.  1095,  affirming  61  Misc.  K. 
(Mass.)    114;    Cahill  v.  Bigelow,   18  497,  113  N.  Y.  Supp.  882. 

Pick.  (Mass.)  369,  372;  Lee  v.  Stowe, 
57  Tex.  444, 


§    373  SUEETYSHIP  AND  GuAEANTY.  390 


CHAPTER  XIY. 

GUARANTY  WITHIN  THE  STATUTE  OF  FRAUDS. 

Section  373.  Fourth  Section  of  the  Statutes  of  Frauds. 

374.  When  the  Promise  is  Within  the  Statute. 

375.  Effect  of  the  Statute  of  Frauds. 

376.  Principal  Debtor  —  Incapacity  to  Contract. 

377.  New  Consideration. 

378.  Consideration  for  Promise. 

379.  Third  Party  Taking  Debtor's  Property  —  Agreement  to  Pay 

Creditor. 

380.  If  Third  Person  is  Not  Liable. 

381.  Original  Consideration. 

382.  Oral  Promise  to  Indemnify  Another. 

383.  Indemnity  Contracts  in  General. 

384.  What  is  a  Sufficient  Consideration. 

385.  Novation. 

386.  Promise  to  Pay  the  Debt  of  Another  —  Statute  of  Frauds. 

387.  Promise  to  the  Debtor  to  Pay  His  Debt. 

388.  To  Whom  Credit  is  Given. 

389.  Indorsing  and  Executing  Notes  for  Another, 

390.  Assignment  of  Promissory  Notes. 

391.  Agreement  to  Pay  Debt  of  Contractor. 

392.  Relinquishment  of  a  Lien. 

393.  Promise  to  Perform  the  Obligation  of  Another  Person. 

394.  Del  Credere  Contracts. 

395.  To  Whom  the  Promise  Must  Be  Given. 

396.  Contract  for  the  Benefit  of  the  Promisor. 

397.  Special  Promise  —  When  Original  Debtor  is  Released. 

398.  Sale  of  Goods  —  Liability  of  Third  Person. 

399.  Joint  Liability. 

400.  Oral  Contract  of  Insurance. 

401.  To  Answer  for  the  Torts  of  Another. 


Sec.  373.     Fourth    Section   of   the    Statute   of    Frauds. — The 

fourth  section  of  the  statute  of  frauds  provides  that  no  action  shall 
be  brought  whereby  to  charge  the  defendant  upon  any  special 
promise  to  answer  for  the  debt,  default  or  miscarriage  of  another 
person,  unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in  writing 
and  signed  by  the  party  to  be  charged  therewith  or  some  other 


591 


Guaranty  Within  the  Statute  of  Fbauds.   §  374 


person  thereunto  by  him  lawfully  authorized/  This  statute,  with 
few  modifications,  has  been  re-enacted  throughout  the  United 
States. 


§  374-  When  the  Promise  is  Within  the  Statute. — When  the 
contract  is  merely  one  of  guaranty,  that  is,  when  it  does  not  im- 
pose any  direct  liability,  and  consists  solely  in  an  engagement  for 
performance  by  the  principal,  it  is  manifestly  within  the  terms 
of  the  statute,  and  the  contract  must  be  in  writing.  And  there 
must  be  a  principal  debtor,  and  the  promise  must  be  made  to  the 
creditor  to  whom  the  principal  debtor  has  already  or  is  thereafter 
to  become  liable.  The  express  promise  must  create  a  liability  to 
pay  for  another;  that  is,  the  promisor  must  agree  to  pay  if  the 
debtor  does  not,  and  the  promise  must  be  in  writing.^ 


1.  29  Car.  2,  ch.  3. 

2.  Spear  v.  Farmers  &  Merchants' 
Bank,  156  111.  555,  41  N.  E.  164;  El- 
der V.  Warfield,  7  H.  &  J.  (Md.)  391; 
Birkmyr  v.  Darnell,  Salk.  27. 

Promise  must  be  in  writing.  See 
also: 

California. — Tevis  v.  Savage,  130 
Cal.  411,  62  Pac.  611. 

Colorado. — Burson  v.  Bogart,  18 
Colo.  App.  449,  72  Pac.  605. 

Connecticut. — Temple  v.  Bush,  76 
Conn.  41,  55  Atl.  557. 

Florida. — West  v.  Grainger,  46 
Fla.  257,  35  So.  91. 

Illinois. — McKinney  v.  Armstrong, 
97  111.  App.  208. 

Indiana. — Indiana  Trust  Co.  v. 
Finitzer,  160  Ind.  647,  67  N.  E.  520; 
Blumenthal  v.  Tibbits,  160  Ind.  70, 
66  N.  E.  159. 

Iowa. — Schoonover  v.  Osborne, 
117  Iowa.  427,  90  N.  W.  844. 

Massachusetts. — Stowell  v.  Gram, 
184  Mass.  562,  69  N.  E.  342. 

Minnesota. — Hanson  v.  Nelson,  82 
Minn.  220,  84  N.  W.  742. 

Missouri. — Gansey  v.  Orr,  173  Mo. 
532,  73   S.  W.   477;    Fussell   v.  Wil- 


liams, 87  Mo.  App.  518;  Nunn  v.  Car- 
roll, 83  Mo.  App.  135. 

Nebraska.— Swigart  v.  Genterf,  63 
Neb.  157,  88  N.  W.  159;  Williams  v. 
Auten,  62  Neb.  832,  87  N.  W.  1061. 

New  Jersey.— Hartley  v.  Sandford, 
66  N.  J.  L.  627,  50  Atl.  454,  55  L.  R. 
A.  206. 

New  York. — Becker  v.  Krank,  75 
App.  Div.  191,  77  N.  Y.  Supp.  665. 
affirmed  176  N.  Y.  545,  68  N.  E.  191; 
Cardeza  v.  Bishop,  54  App.  Div.  116, 
66   N.   Y.   Supp.   408. 

North  Carolina.  —  Garrett-Wil- 
liams Co.  V.  Hamill,  131  N.  C.  57, 
42  S.  E.  448;  Wood  v.  Atlantic  &  N. 
C.  R.  Co.,  131  N.  C.  48,  42  S.  E.  462. 

Ohio. — Russell  v.  Fenner,  21  Ohio 
Cir.  Ct.  R.  527,  11  O.  C.  D.  754. 

Bhode  Island.  —  Matteson  v. 
Moone,  25  R.  I.  129,  54  Atl.  1058. 

Texas. — Flannery  v.  Chidgey,  33 
Tex.  Civ.  App.  638,  77  S.  W.  1034. 

Washington.  —  First  National 
Bank  v.  Gaddis,  31  Wash.  596,  72 
Pac.  460;  Barto  v.  Phillips,  28  Wash. 
482,  68  Pac.  895. 

Wisconsin. — Commercial  National 


§  375 


Suretyship  and  Guaranty. 


392 


In  some  jurisdictions,  it  is  held  to  be  a  presumption  of  law 
that  if  any  contract,  beneficial  to  the  promisor,  is  the  object  sought 
to  be  obtained  by  his  promise,  he  must  be  understood  to  intend  an 
original  undertaking  which  is  not  within  the  statute.^ 

As  a  general  rule,  in  order  that  the  promise  can  be  held  to  be 
within  the  statute,  it  is  essential  that  there  be  a  binding  and  sub- 
sisting obligation  or  liability  to  the  promisee,  to  which  the  promise 
is  collateral;  that  is,  the  party  for  whom  the  promise  has  been 
made  must  be  liable  to  the  party  to  whom  it  is  made-* 

§  375.  Effect  of  the  Statute  of  Frauds. — In  some  States  ex- 
tension of  time  to  pay  the  debt  to  a  certain  day,  by  paying  in- 

Bank  v.  Goodrich,  107  Wis.  574,  83  A  stockholder  and  president  of  a 

N.  W.  766.  corporation   not   being   individually 

Canada. — Boorstein  v.  Moffatt,  36  liable  for  its  debts  only  assumes  a 

N.  S.  81.  collateral     liability     as     surety     in 

Rule  applied  to  gnaranty  by  wife,  guaranteeing  payment  of  the   cor- 

Hanson  v.  Nelson,  82  Minn.  220,  84  porate    debts.      His    contract    guar- 

N.  W.  742;  Nunn  v.  Carroll,  83  Mo.  anteeing  such  a  debt  must  be  evi- 

App.  135;  Cardezav.  Bishop,  54  App.  denced   by   a   writing  in   which   the 

Div.  (N.  Y.)  116,  66  N.  Y.  Supp.  408.  consideration  must  be  expressed  or 

Compare  Linam  v.  Jones,  134  Ala.  from    which    it    may    fairly   be    in- 
ferred.     Winne    v.    Mehrbach,     130 

applied    to     guaranty     by  App.   Div.    (N.   Y.)    329,   114   N.   Y. 

Hartley  v.  Sandford,  66  N.  g^pp    Qig 

Promise  to  repay  purchase  price 
of  stocko  If  an  officer  of  a  corpora- 
tion orally  promises  a  prospective 
purchase  of  the  corporate  stock  to 
repay  the  purchase  price  at  any 
time  and  the  purchaser  acts  upon 
the  promise,  the  agreement  is  an 
original  contract,  and  is  not  within 
the  statute  of  frauds.  The  prom- 
isor does  not  thereby  agree  to  an- 
swer for  the  debt,  default  or  mis- 
doings of  another  person,  nor  does 
he  agree  to  purchase  goods,  wares. 


570,  33  So.  343 

Rule 
father. 

J.   L.   627,   50  Atl.   454,   55   L.   R.   A. 
206. 

3.  Westmoreland  v.  Porter,  75  Ala. 
452;  Chapline  v.  Atkinson,  45  Ark. 
67;  Lerch  v.  Gallup,  67  Cal.  595,  8 
Pac.  322. 

4.  Connecticut — Pratt  v.  Humph- 
rey, 22  Conn.  317. 

Illinois. — Ressiter  v.  Waterman, 
151  111.  169,  37  N.  E.  875;  McKinney 
V.  Armstrong,  97  111.  App.  208. 

Massachusetts. — Preble  v.  Bald- 
win, 6  Cush.  549;  Alger  v.  Scoville, 


1  Gray  391. 

New    York.— Tighe    v.    Morrison,  merchandise    or    things    in    action. 

116  N.  Y.  263,  22  N.  E.  164;  Westfall  Campbell    v.    Luebben,    90    Neb.    95, 

V.  Parsons,  16  Barb.  645.  132  N.  W.  932;  Trenholf  v.  Kloepper, 

England.— Hargreaves  v.  Parsons,  88  Neb.  236,  129  N.  W.  436. 

13    Mees.    &   W.    561;    Eastwood    v.  See,    also,    Schoeffer    v.    Strieder^ 

Kenyon,  11  Ad.  &  E.  438.  203  Mass.  467,  89  N.  E.  618. 


393  Guaranty  Within  the  iStatute  of  Frauds.       §  3TG 

terest,  is  no  consideration ;  but  where  this  is  a  consideration  the 
contract  must  be  in  writing.  Thus,  a  parol  agreement  by  the 
debtor  to  pay  interest  for  a  year  at  a  certain  rate  is  not  a  sufficient 
consideration,^  and  if  it  would  be  a  sufficient  consideration  the 
contract  must  be  in  writing.*^  Under  the  statute  of  Illinois  it  is 
not  necessary  to  the  existence  of  a  valid  contract  to  extend  the 
time  of  payment  of  a  promissory  note  that  such  extension  must 
be  in  writing.  Because  the  extension  of  time  does  not  abrogate 
the  original  contract  so  as  to  make  an  entire  new  contract  resting 
in  parol,  but  has  only  the  effect  of  extending  the  time  of  payment 
fixed  in  the  note  to  a  day  certain  in  the  future  for  its  perform- 
ance. The  new  agreement  is  one  to  postpone  the  performance 
agreed  upon  for  a  definite  time  for  a  full  consideration.' 

§  376.  Principal  Debtor — Incapacity  to  Contract. — Where 
one  becomes  surety  for  the  performance  of  a  promise  made  by  a 
person  incompetent  to  contract,  his  contract  is  not  purely  acces- 
sorial, nor  is  his  liability  necessarily  ascertained  by  determining 
whether  the  principal  can  be  made  liable.  For  incapacity  of  the 
principal  party  promising  to  make  a  legal  contract,  if  understood 
by  the  parties,  is  the  very  defense  of  the  principal  for  which  the 
surety  assures  the  promisee,  and  the  surety  is  therefore  liable.* 

Where  there  is  no  fraud,  duress,  deceit  or  violation  of  law  or 
public  policy  on  the  part  of  the  payee  in  procuring  the  execution 
of  the  promise,  the  surety  in  such  case  is  liable,  although  the  prin- 
cipal be  not.^ 

Thus,  a  minor's  contract  is  not  void,  but  voidable  at  his  elec- 
tion ;  and  until  it  is  avoided  it  is  a  valid  contract,  l^or  can  a 
third  person  avail  himself  of  the  minority  of  a  debtor  to  obtain 
any  right  or  security  or  title.  Infancy  is  a  personal  privilege, 
of  which  no  one  can  take  advantage  except  the  minor. ^^     So,  it 

5.  Turner  v.  "Williams,  73  Me.  466.  Iowa. — Jones    v.    Crosthwait,    17 

6.  Berry  v.  Pullen.  69  Me.   101.  Iowa  393. 

7.  Reynolds  v.  Barnard,  36  111.  Missouri. — Weed  Sewing  Machine 
App.  218.  Co.  V.  Maxwell,  63  Mo.  486. 

8.  Winn  v.  Sanford,  145  Mass.  302,  New  York.— Kimball  v.  Newall,  7 
14  N.  E.  119.  Hill  116. 

Compare  §  380  herein.  Vermont. — St.  Albans  Bank  v.  Dil- 

9.  Indiana.— Davies   v.   Statts,   43    Ion.  30  Vt.  122. 

Ind.  103.  10.  Kendall  v.  Lawrence,  22  Pick, 

(Mass.)    540. 


§  377  SUEETYSHIP  AND  GuAKANTY.  394 

is  said,  a  promise  by  a  party  to  pay  the  debt  of  an  infant,  though 
made  upoii  a  sutHcient  consideration,  is  a  promise  to  pay  the  debt 
of  another,  and  must  be  in  writing  to  be  enforceable ;  the  doctrine 
that  there  was  no  debt  because  the  principal  debtor  was  a  minor 
cannot  prevail.^^ 

Some  courts,  however,  hold  that  in  case  of  a  guaranty  of  a  per- 
son's contract  who  is  incapacitated  to  contract,  the  guarantor  is 
not  liable.  As  soon  as  the  incompetent  principal  sets  up  his  in- 
ability to  make  the  contract,  the  debt  cannot  then  be  collected 
•either  from  him  or  his  guarantor ;  that  the  third  party  guaran- 
tied something  that  did  not  exist,  and  hence  he  is  not  liable.^ 

Whether  this  doctrine  is  correct  admits  of  doubt.  The  under- 
taking of  a  surety  is  immediate  and  direct  that  the  act  shall  be 
done ;  if  not  done,  the  surety  becomes  at  once  responsible,  and  the 
creditor  may  sue  him  alone  or  him  and  the  debtor  together.  In 
case  of  guaranty  the  guarantor  undertakes  to  pay  if  the  principal 
cannot;  that  is,  he  is  liable  only  for  the  ability  of  the  debtor  to 
perform  this  act.  In  the  case  of  guaranty,  non-liability  of  the 
■debtor  must  first  be  shown  before  the  guarantor  becomes  liable/^ 

§  377-  New  Consideration. — The  general  rule  is  that  v/here 
there  is  in  existence  an  obligation  on  the  part  of  another  and  a 
promise  to  perform  that  obligation  if  he  does  not,  or  to  guaranty 
his  performance,  it  is  not  within  the  statute  if  it  is  made  upon 
a  new  consideration  inuring  to  the  benefit  of  the  promisor,  al- 
though the  former  obligation  is  not  extinguished,  provided  the 
chief  purpose  of  the  promisor  is  to  obtain  a  benefit  to  himself.^'* 

11.  Davis  V.  Statts.  43  Ind.  103;  Ala.  570,  33  So.  343;  Westmoreland 
Dexter      v.      Blanchard,      11      Met.    v.  Porter,  75  Ala.  452. 

(Mass.)   365.  District  of  Colnmbia. — Williamson 

But  see  §  380  herein.  v.  Hill,  3  Mackey  100. 

12.  King  V.  Summit,  73  Ind.  312;  Florida.— Craft  v.  Hendrick,  39 
Smith  V.  Hyde,  19  Vt.  54.  Fla.  90,  21  So.  803. 

See  §  380.  Georgia. — Bluthenthal     v.     Moore. 

13.  Reigart   v.    White,    52    Pa.    St.    106  Ga.  424,  32  S.  E.  344. 

440.  Illinois. — Power    v.    Rankin,    114 

14.  United  States.  —  Mine  and  ill.  52,  29  N.  E.  185;  Borch-^'enius  v. 
Smelter  Supply  Co.  v.  Stockgrcw-  Camiston,  100  111.  82;  Crfford  v. 
ers'  Bank,  173  Fed.  859,  98  C.  C.  A.  Luhring,  69  111.  401;  Beltine  Cheml- 
229.  cal  &  Mfg.  Co.  v.  Zulfer,  152  111.  App. 

Alabama. — Linam    v.    .Tones,     134 


595 


GuABANTY  'Within  the  (Statute  of  Feauds.       §  377 


This  rule  has  been  applied  where  the  consideration  to  the  prom- 
isor was  the  retention  of  the  possession  of  premises  ;^'^  improve- 
ments upon  premises  of  which  he  was  the  mortgagee  j^*^  the  transfer 
of  goods  to  him ;"  the  securing  of  the  commission  due  on  a  con- 
tract/^ and  the  release  of  a  person  from  imprisonment  to  enable 
him  to  enter  the  promisor's  emploj.^^ 

In  determining  whether  an  alleged  promise  is  or  is  not  a  prom- 
ise to  answer  for  the  debt  of  another,  the  following  rules  may  be 
applied:  (1)  If  the  promisor  is  a  stranger  to  the  transaction, 
without  interest  in  it,  the  obligations  of  the  statute  are  to  be 
strictly  upheld  as  a  collateral  undertaking;  (2)  but  if  he  has  a  per- 
sonal, immediate  and  pecuniary  interest  in  the  transaction  in 
which  a  third  party  is  the  original  obligor,  it  is  founded  upon  a 
sufficient  consideration,  and  is  valid  as  an  original  contract.  The 
real  character  of  a  promise  does  not  depend  altogether  upon  form 


308;  Knisley  v.  Brown,  95  111.  App. 
516. 

Indiana. — Voris  v.  Star  City  Build- 
ing &  Loan  Ass'n,  20  Ind.  App.  630, 
50  N.  E.  779. 

Iowa. — Jones  v.  General  Const. 
Co.,  150  Iowa  194,  129  N.  W.  830; 
Carraher  v.  Allen,  112  Iowa  168,  83 
N.  W.  902. 

Massachusetts. — Stebbins  v.  Scott, 
172  Mass.  355,  52  N.  E.  535;  Fears  v. 
Story,  131  Mass.  47;  Walker  v.  Hill, 
110  Mass.  249. 

Mississippi.  —  Biglane  v.  Hicks 
(Miss.  1903),  33  So.  413. 

Nebraska. — Fitzgerald  v.  Morris- 
eey,  14  Neb.  198. 

New  York. — Schuerer  &  Sons  r. 
Stone,  130  App.  Dlv.  796,  115  N.  Y. 
Supp.  440,  aff'd  200  N.  Y.  560,  93  N. 
E.  1116;  Berg  v.  Spitz,  87  App. 
Div.  602,  84  N.  Y.  Supp.  532;  Hess  v. 
Rothschild,  34  Misc.  R.  800,  69  N.  Y. 
Supp.  957;  Smith  v.  Schneider,  84 
N.  Y.  Supp.  238:  Boeff  v.  Rosenthal, 
37  Misc.  R.  852,  76  N.  Y.  Supp.  988. 

North  Carolina.  —  Whitehurst  v. 
Hyman,  90  N.  C.  487. 


Ohio.  —  Crawford  v.  Edison,  45 
Ohio  St.  239,  13  N.  E.  80;  Jarumsch 
V.  Otis  Iron  &  Steel  Co.,  23  Ohio  Cir. 
Ct.  R.  122. 

Pennsylvania. — Sargent  v.  Johns, 
206  Pa.  St.  386,  55  Atl.  1051;  Merriam 
y.  McManus,  102  Pa.  Ct.  102;  Baxter  v. 
Hurlburt,  15  Pa.  Super.  Ct.  541. 

Tennessee. — Lookout  Mountain  R. 
R.  Co.  V.  Houston,  85  Tenn.  224,  2 
S.  W.  36. 

Texas. — Spann  v.  Cockran,  63  Tex. 
240. 

West  Virginia. — Mankin  v.  Jones, 
68  W.  Va.  422,  69  S.  E.  981. 

15.  Linham  v.  Jones,  134  Ala.  570, 
33  So.  343;  Baxter  v.  Hurlburt,  15 
Pa.  Super.  Ct.  541. 

16.  Boeff  V.  Rosenthal,  37  Misc.  R, 
(N.  Y.)  852,  76  N.  Y.  Supp.  988. 

17.  Berg  v.  Spitz,  87  App.  Div.  (N. 
Y.)  602,  84  N.  Y.  Supp.  532;  Sargent 
V.  Johns,  206  Pa.  St.  386,  55  Au. 
1051. 

18.  Hess  V.  Rothschild,  34  Misc.  R. 
(N.  Y.)   800,  69  N.  Y.  Supp.  957. 

19.  Berg  v.  Spitz,  87  App.  Div.  (N. 
Y.)  602,  84  N.  Y.  Supp.  532. 


§§  378,  739  Suretyship  and  Guaranty.  396 

of  expression,  but  largely  upon  the  situation  of  the  parties,  and 
upon  whether  they  understood  it  to  be  a  collateral  or  direct 
promise.^'' 

§  378.  Consideration  for  Promise. — A  contract,  whether  re- 
quired to  be  in  writing,  to  be  valid,  must  be  based  upon  a  sufficient 
consideration.  So  where  a  creditor  accepts  from  a  third  person  in 
payment  and  satisfaction  of  his  debt,  the  obligation  of  such  third 
person,  it  is  a  new  undertaking,  and  not  within  the  statute  of 
frauds,  but  the  contract  must  be  supported  by  a  sufficient  con- 
sideration.^^ There  must  be  a  sufficient  consideration  in  every 
case,  even  if  the  contract  is  in  writing.  But  a  consideration  is 
not  of  itself  sufficient  to  supply  the  place  of  a  writing  where  one 
is  necessary.  To  take  the  case  out  of  the  statute,  there  must  be  a 
consideration  moving  from  the  promisor,  either  from  the  creditor 
or  debtor;  that  is  the  feature  which  imparts  to  the  promise  the 
character  of  an  original  undertaking.^^ 

§  379.  Third  Party  Taking  Debtor's  Property — Agreement  to 
Pay  Creditor. —  A  debtor  may  place  his  property  in  the  hands  of 
a  third  party  for  the  purpose  of  having  it  converted  into  money 
to  pay  his  debt.  If  the  receiver  takes  the  property  for  such  pur- 
pose and  promises  the  debtor  to  pay  such  debt,  the  promise  need 
not  be  in  writing. ^^  Thus,  where  lumber  was  sold  to  A  on  the 
credit  of  B,  and  A  pays  therefor,  a  promise  by  B  to  the  vendor  to 
pay  him  for  the  lumber  will  be  in  the  nature  of  an  original  con- 
tract to  pay  the  debt  of  a  third  party,  founded  upon  a  sufficient 

20.  Davis  v.  Patrick,  141  U.  S.  479,  ceptance  and  promise  to  pay  Is 
12  Sup.  Ct.  58,  35  L.  Ed.  826.  within  the  Statute  of  Frauds  and  no 

21.  Carlisle  v.  Campbell,  76  Ala.  recovery  can  be  had  thereon.  Hilt 
247.  V.   Wright,   144  Ky.   806,   139   S.   W. 

The  consideration  need  not  be  ex-  946. 

pressed  in  a  written  promise  to  an-  22.  Mallory  v.  Gillett,  21  N.  Y.  412. 

swer   for   the   debt   of  another,   but  2.S.  Dock  v.  Boyd,  93   Pa.   St.   92; 

may  be  established  by  parol.     Peele  Wait  v.  Wait,  28  Vt.  350. 

V.  Powell,  156  N.  C.  553,  73  S.  E.  234.  See,    also,    Burson   v.    Bogart,    49 

A  verbal  acceptance  of  an  order  Colo.   410,   113   Pac.   516;    Forks  v. 

.s-lven  by  one  partner  on  another  for  Thorpe,  209  Mass.  570,  95  N.  E.  955. 

tha  former's  individual   debt,  there  Transfer  to  wife,  see  Mclntire  v. 

being  no  consideration  for  the  ac-  Schiffer,  31  Colo.  246,  72  Pac.  1056. 


397     Guaranty  Within  the  iStatute  of  Fkadds.     §§  380,  381 

consideration,  and  not  within  the  statute.^*  But  the  property  must 
be  placed  in  the  hands  of  a  third  party  uncondition- 
ally, and  the  third  party  must  take  it  for  that  pur- 
pose. If  the  third  party  has  the  liberty  to  pay  the  debt  out  of  his 
-own  property,  and  not  out  of  the  debtor's,  then  a  promise  to  pay 
the  creditor  comes  within  the  statute.^  So  where  the  assignee  ar- 
ranges to  pay  the  assignor's  debt  after  he  has  reduced  or  con- 
verted the  property  into  cash,  a  verbal  promise  to  the  debtor's 
creditor  before  such  conversion  into  money,  to  pay  the  debt  is 
void,  as  it  comes  within  the  statu te.^^ 

Where  the  money  is  in  the  hands  of  the  promisor  no  written 
contract  is  required.  Thus,  where  a  party  agrees  to  pay  board  for 
workmen,  and  has  the  money  for  that  purpose,  an  oral  contract  is 
sufficient.^'' 

§  380.  If  Third  Person  is  Not  Liable. — Some  courts  hold  that 
if  the  third  person  is  not  liable,  then  the  undertaking  is  not  within 
the  statute.  This  doctrine  is  applied  where  the  promise  is  to  answer 
for  the  debt,  default  or  miscarriage  of  an  infant  or  other  parties 
incapacitated  to  make  a  valid  contract ;  that  is,  there  is  no  third 
person  liable  in  contemplation  of  law,  and  the  promise  is  not  within 
the  statute,^^  but  is  an  original  undertaking  of  the  guarantor,  and 
he  is  therefore  liable  as  on  any  other  debt  he  may  contract.^^  If 
it  is  an  ultra  vires  contract  of  a  corporation,  the  rule  is  the  same, 
and  the  guarantor  alone  is  liable.^'* 

§  381.  Original  Consideration. — The  statute  by  its  terms 
operates  on  cases  where  there  is  a  primary  or  original  debt  or  ob- 
ligation upon  which  is  based  a  collateral  promise  of  another  per- 
son, to  answer  for  such  primary  or  original  debt  or  obligation.     If 

24.  Watkins  v.  Sands,  4  111.  App.  28.  Anderson  v.  Spence,  72  Ind. 
207.  315;    Chapin    v.    Lapham,    20    Pick. 

25.  Ackley  v.  Parmenter,  98  N.  T.  (Mass.)  467;  Harris  v.  Huntbach,  1 
42.0 ;  Shaaber  v.  Bushong,  105  Pa.  St.  Bur.  373. 

514.  But  see  §  376  herein  in  this  con- 

26.  Belknap   v.   Bender,   75   N.   T.    nection. 

446.  29.  Harris    v.    Huntbach,    1    Bur. 

27.  Chicago,  etc.,  Coal  Co.  v.  Lid-   373. 

^ell,  69  ni.  639.  80.  Drake    v,    Flewellen,    33    Ala. 

106. 


§  381 


Suretyship  and  Guaranty. 


398 


there  be  in  fact  no  such  primary  debt  or  obligation^  or  the  same  is 
extinguished  and  discharged,  or  if  the  promise  be  not  to  answer 
for  such  primary  debt  or  obligation,  or  if  it  be  a  primary  or  direct 
promise  for  a  sufficient  consideration,  the  statute  does  not  apply 
or  require  a  promise  to  be  in  writing.  Because  the  statute  con- 
templates the  mere  promise  of  one  person  to  be  responsible  for 
another,  and  cannot  be  interposed  as  a  cover  and  shield  against 
the  actual  obligation  of  the  defendant  himself.  If  the  third  per- 
son makes  an  entire  but  substantial  and  independent  contract  with 
the  creditor  to  perform,  or  for  some  service,  this  may  be  enforced 
though  not  in  writing,  as  it  is  not  collateral.^^ 


81.  United  States.  —  Choate  v. 
Hoogstraat,  105  Fed.  713,  46  C.  C. 
A.  174;  Champlain  Const.  Co.  v. 
O'Brien  (U.  S.  C  C),  117  Fed.  271, 
788. 

Alabama. — Pake  v.  Wilson,  127 
Ala.  240,  28  So.  665;  Jolly  v.  Walker, 
26  Ala.  690. 

Arkansas. — Gale  v.  Harp,  64  Ark. 
462,  43  S.  W.  144. 

California. — Kilbride  v.  Moss,  113 
Cal.  432,  45  Pac.  812. 

Colorado. — Mclntire  v.  Schiffer,  31 
Colo.  246,  72  Pac.  1056;  Waid  v.  Hob- 
son,  17  Colo.  App.  54,  67  Pac.  176; 
Baldwin  Coal  Co.  v.  Davis,  15  Colo. 
App.  371,  62  Pac.  1041. 

Illinois.— Lusk  v.  Throop,  89  111. 
App.  509,  affirmed  180  111.  127,  59 
N.  E.  529;  Clifford  v.  Luhring,  69  111. 
401;  Jones  v.  McLauglin-Patrick 
Const.  Co.,  99  111.  App.  320;  Knisely 
V.  Brown,  95  111.  App.  516. 

Iowa. — Marr  v.  Burlington,  C.  R. 
&  N.  Ry.  Co.,  121  Iowa  117,  96  N.  W. 
716. 

Kentucky. — Simpson  v.  Carr,  25 
Ky.  Law  Rep.  849,  76  S.  W.  346. 

Micln'gan. — Hagadorn  v.  Stronach, 
81  Mich.  56,  45  N.  W.  650. 

Missouri. — Bradshaw  v.  Cockran, 
91  Mo.  App.  294;   Beeler  v.  Finnell, 


85  Mo.  App.  438;  Yeoman  v.  Mueller, 
33  Mo.  App.  343. 

Montana. — Hefferlin  v.  Karlman, 
29  Mont.  139,  74  Pac.  201. 

Nebraska. — Weilage  v.  Abbott,  3 
Neb.  (Unoff.)  157,  90  N.  W.  1128; 
Learn  v.  Upstill,  52  Neb.  271,  72  N.. 
W.  213;  Fitzgerald  v.  Morrissey,  14 
Neb.  188,  15  S.  W.  233. 

New  Jersey. — Gallagher  v.  Mc- 
Bride,  66  N.  J.  L.  360,  49  Atl.  582; 
Hartley  v.  Sandford,  66  N.  J.  L.  40, 
48  Atl.  1009;  Herendeen  Mfg.  Co.  v. 
Moore,  66  N.  J.  L.  74,  48  Atl.  525. 

New  York. — Ward  v.  Hasbrouck, 
65  N.  Y.  Supp.  200,  affirmed  169  N. 
Y.  407,  62  N.  E.  434;  Crook  v.  Scott, 
65  App.  Div.  139,  72  N.  Y.  Supp.  516, 
affirmed  174  N.  Y.  520,  66  N.  E.  1106; 
Williams  v.  Bedford  Bank,  63  App. 
Div.  278,  71  N.  Y.  Supp.  539;  Hardt 
V.  Becknagel,  62  App.  Div.  106,  70 
N.  Y.  Supp.  782;  Roussel  v.  Mathews, 
62  App.  Div.  1,  70  N.  Y.  Supp.  886; 
Scherzer  v.  Muirhead,  84  N.  Y.  Supp. 
159;  Bayles  v.  Wallace,  56  Hun  428,. 
10  N.  Y.  Supp.  191. 

Ohio. — Crawford  v,  Edison,  45 
Ohio  St.  239,  13  N.  E.  80. 

Oklahoma. — Kesler  v.  Cheadle,  12 
Okla.  489,  72  Pac.  367. 

Oregron. — Manary  v.  Runyon,  43 
Ore,  495,  73  Pac.   1028;    Kiernan  v.. 


SQO'     Guaranty  Within  the  Statute  of  Frauds.   §  382 

The  object  of  a  collateral  promise  is  to  promote  the  interest  of 
another;  the  object  of  an  original  promise  is  to  promote  the  in- 
terest of  the  party  making  the  promise.  The  former  is  within  the 
operation  of  the  statute,  the  latter  is  not  affected  by  it.  When  the 
promisor  is  himself  to  receive  the  benefit  for  which  the  promise  is 
exchanged,  it  is  not  usually  material  whether  the  original  debtor 
remains  liable  or  not.^^ 


§  382.  Oral  Promise  to  Indemnify  Another. — The  general 
rule  is  that  an  oral  promise  by  one  person  to  indemnify  another 
for  becoming  a  guarantor  for  a  third  person  is  not  within  the  stat- 
ute, and  need  not  be  in  writing,  for  the  assumption  of  the  re- 
sponsibility is  a  sufficient  consideration  for  the  promise,^^  This 
is  now  the  law  in  England.^* 

There  the  inducement  for  the  promise  of  indemnity  is  a  bene- 
fit to  the  promisor  which  he  did  not  have  before,  or  would  not 
otherwise  enjoy,  as  where  he  has  a  personal,  immediate  and  pecu- 
niary interest  in  the  principal  transaction,  and  is  therefore  him- 
self a  party  to  be  benefited  by  performance  on  the  part  of  the 

Kratz,  42  Ore.  474,  69  Pac.  1027,  70  Knowledge  by  the  obligee  of  the 

Pac.  506.  real   consideration  is  not  essential. 

Pennsylyania. — Sargent   v.   Johns,  Choate  v.  Hoogstraat,  105  Fed.  713, 

206  Pa.  St.  386,  55  Atl.  1051;    Pizzi  46  C.  C.  A.  174. 

V.  Nardello,  23  Pa.  Super.  Ct.  535;  32.  Calkins  v.  Chandler,  36  Mich. 

May   V.   Walker,   20    Pa.    Super.    Ct.  324. 

581.  33.  Dent  v.  Arthur,  156  I\Io.  App. 

Rhode  Island.— Matteson  v.  Moone.  472,  137  S.  W.  285 ;  Hartley  v.  Sand- 

25  R.  I.  129,  54  Atl.  1058;  Stillman  v.  ford,   66   N.   J.  L.   40,   48  Atl.   1009; 

Dresser,  22  R.  I.  389,  48  Atl.  1.  Jones   v.   Bacon,   145   N.   Y.    446,   40 

Sonth  Dakota. — Meldrum  v.  Kene-  N.  E.  216;  Tighe  v.  Morrison,  116  N. 

fick,  15  S.  D.  370,  89  N.  W.  863.  Y.  263,  22  N.  E.  164;  Chapin  v.  Mer- 

Texas.— Lemmon  v.  Box,  20  Tex.  rill,  4  Wend.  657;  Hyde  v.  Equitable 

329.  Life  Assur.  Soc,  61  Misc.  R.  518,  116 

Washington. —  Dimmick  v.  Collins,  N.   Y.   Supp.   219;    Rose  v.   Wallen- 

24  Wash.  78,  63  Pac.  1101.  berg,  31  Ore.  269,  44  Pac.  382. 

Wisconsin. — Young  v.   French,  35  34.  Thomas  v.  Cook,  8  Barn.  &  C. 

"Wis.  Ill,  728;    Reader   v.   Kingham,   13   C.  B. 

Compare  Puckett  v.  Bates,  4  Ala.  (N.  S.)  344;  Guild  v.  Conrad  (1894), 

390;  Ellison  v.  Jackson,  12  Cal.  542;  2  Q.  B.  885;  Wildes  v.  Dudlow,  19  Eq. 

Noyes  v.  Humphreys,  11  Graft.  (Va.)  198. 
635;   Ware  v.  Stephenson,  10  Leigh 
(Va.)  155.- 


§  382 


SufiETYSHIP  AND  GUARANTY. 


400 


promisee,  the  coutract  is  not  within  the  statute,  and  may  be  sup- 
ported by  a  verbal  undertaking.  In  reality  the  undertaking  is  to 
pay  a  debt  which  is  in  substance  a  debt  of  the  promisor.^^  A  con- 
tract of  indemnity  is  not  a  contract  with  the  creditor  to  answer  for 
the  default  or  miscarriage  of  the  debtor,  but  is  independent  of  the 
principal  contract  or  obligation,  and  constitutes  an  entirely  dis- 
tinct and  separate  undertaking  with  which  the  creditor  has  noth- 
ing to  do.  In  such  cases  the  assumption  of  liability  by  the  prom- 
isor is  itself  a  sufficient  consideration  to  support  the  promise  re- 
gardless of  any  subservient  interest  of  the  promisor,  and  the  fact 
of  his  becoming  co-surety  with  the  promisee  to  it  need  not  be  in 
writing.^®  Indemnity  contracts  are  not  within  the  statute,  as  they 
are  not  made  to  pay  the  debt  of  another  f'  this  is  the  great  weight 
of  authority  and  trend  of  all  the  late  decisions  which  are  not  con- 
trolled by  precedent.^^  This  doctrine  is  based  upon  the  ground 
that  the  contract  of  indemnity  is  not  within  the  statute,  as  the 
statute  concerns  only  contracts  of  suretyship ;  that  the  contract  is 
an  original  one,  and  therefore  not  within  the  statute. 


35.  Davis  v.  Patrick,  141  U.  S.  479, 
12  Sup.  Ct.  58,  35  L.  Ed.  826;  Emer- 
son V.  Slater,  22  How.  (U.  S.)  28,  43, 
16  L.  Ed.  360;  Smith  v.  Delaney,  64 
Conn.  264,  29  All.  496;  Potter  v. 
Brown,  35  Mich.  274. 

36.  lOTra.  —  Mills  v.  Brown,  11 
Iowa  314. 

Kentncky. — Dunn  v.  West,  5  B. 
Mon.  .376. 

Michigan. — Boyer  v.  Soules,  105 
Mich.  31,  62  N.  W.  1000. 

Nebraska. — Minick  v.  Huff,  41  Neb. 
516,  59  N.  W.  795. 

New  Hampshire.  —  Holmes  ▼. 
Knight,  10  N.  H.  175. 

Wisconsin. — Vogel  v.  Melms,  31 
Wis.  306. 

37.  Fidelity  &  Casualty  Co.  of 
New  York  v.  Lawlor,  66  Minn.  144, 
66  N.  W.  143;  Warren  v.  Abbott,  65 
N.  J.  L.  99,  46  Atl.  575;  Barth  v. 
Graf,  101  Wis.  27,  76  N.  W.  1100. 

38.  Alabama.  —  Commercial    Fire 


Ins.  Co.  V.  Morris,  105  Ala.  498,  18 
So.  34. 

Illinois. — Resseter  v.  Waterman, 
151   111.  169,  37  N.  E.  875. 

Indiana. — Anderson  v.  Spencer,  72 
Ind.  315. 

Iowa. — Mills  V.  Brown,  11  Iowa 
314. 

Louisiana. — Hoggart  v.  Thomas,  35 
La.  Ann.  298. 

Maine. — Smith  v.  Laywood,  5  Me. 
504. 

Massachusetts. — Aldrich  v.  Ames. 
9  Gray  76. 

Minnesota.  —  Goetz  v.  Foos,  14 
Minn.  265. 

New  Hampshire. — Apgar  v.  Hiler, 
58  N.  H.  523. 

New  York. — Jones  v.  Bacon,  145 
N.  Y.  446,  40  N.  E.  216. 

Vermont. — Braman  v.  Russell,  20 
Vt.  205. 

England.  —  Yorkshire,  etc.,  Ins. 
Co.  V.  Maclure,  19  Ch.  Div.  478; 
Guild  V.  Conrad  (1894),  2  Q.  B.  885. 


401  Guaranty  Within  the  -Statute  of  Frauds.       §  383 

But  another  line  of  cases  holds  that  an  indemnity  is  within  the 
statute  of  frauds,  because  wherever  there  is  a  liability  in  existence, 
the  performance  of  which  by  the  debtor  will  put  an  end  to  liability 
upon  the  special  promise,  the  special  promise  amounts  to  a  promise 
to  pay  the  debt  of  another,  and  must  be  regarded  as  collateral  to 
it."^  This  doctrine  has  been  distinctly  repudiated  in  England  and 
by  the  majority  of  the  courts  in  the  United  States,  And  the  oral 
promise  to  indemnify  a  person  for  becoming  surety  on  another's 
bail  bond,  according  to  the  minority  of  the  courts,  is  within  the 
statute  of  frauds,  and  must  be  in  writing/** 

§  383.  Indemnity  Contracts  in  General. — In  some  jurisdic- 
tions the  promise,  to  come  within  the  statute  of  frauds,  must  re- 
sult in  a  contract  of  suretyship ;  because  it  is  held  that  the  obliga- 
tion arising  from  the  special  promise  should  be  purely  a  collateral 
one ;  therefore  a  contract  of  indemnity  does  not  come  within  the 
statute  of  frauds,  and  need  not  be  in  writing. 

But  in  other  jurisdictions,  a  mere  contract  of  indemnity  is 
within  the  statute;  because  it  is  argued  that  wherever  there  is  a 
liability  in  existence,  the  performance  of  which  by  the  debtor  will 
put  an  end  to  the  liability  upon  the  special  promise,  the  specific 
promise  amounts  to  a  promise  to  pay  the  debt  of  another,  and  must 
be  regarded  as  collateral  to  it.  Therefore  the  statute  of  frauds 
applies  to  a  contract  of  indemnity.  Thus,  if  a  person  signs  an 
obligation  as  surety  upon  the  promise  of  indemnity  by  one  not 
bound  by  the  same  instrument,  the  promise  is  within  the  statute, 
as  being  a  promise  to  answer  for  the  default  of  the  principal  upon 
his  implied  liability  to  his  surety.  A  promise  to  indemnify  one 
for  becoming  a  surety  of  another  must  be  in  writing.*^    But  an  ex- 

89.  Mississippi. — May  v.  Williams,  Tennessee. — Macy  v.  Childress,  2 

61  Miss.  125.  Tenn.  Ch.  438. 

Missouri. — Hunt  v.  Ford,  142  Mo.  England. — Green    v.    Croswell,    10 

283,  44  S.  W.  228;  Bissig  v.  Britten,  Ad.  &  E.  453. 

59  Mo.  204.  40.  May  v.  Williams,  61  Miss.  125, 

Ohio. — Ferrell  v.  Maxwell,  28  Ohio  where  the  authorities  are  reviewed. 

St.  383.  Green  v.  Croswell,  10  Ad.  &  El.  453. 

Pennsylvania. — Nugent    v.    Wolfe,  Compare  Thomas  v.  Cook,  8  Barn. 

Ill  Pa.  St.  471.  &  Cr.  728. 

Sontli      Carolina.  —  Simpson     v.  41.  Illinois. — Brand  v.  Whelan,  18 

Nance,  1  Spears  4.  111.  App.  186.     Compare  Resseter  v. 

Waterman,  151  111.  169,  37  N.  E.  875. 
26 


§  384 


Suretyship  A^D  Guaranty. 


402 


ccption  is  generally  recognized  where  the  indemnitor  is  himself 
primarily  liable  for  the  debt  guaranteed.^^  But  other  courts  hold 
that  a  promise  to  indemnify  one  for  becoming  a  surety  for  another 
need  not  be  in  writing,  because  it  is  an  original  undertaking/^ 

The  promise  is  held  not  to  be  within  the  statute,  because  it  is 
not  to  be  made  to  the  credit,  but  to  one  who  is  debtor."  Others 
hold  the  oral  promise  to  be  enforcable,  because  the  implied  obliga- 
tion of  the  principal  to  indemnify  his  surety  arises  from  a  subse- 
quent fact,  that  is,  the  payment  of  the  debt  by  the  surety/^ 

§  384.  What  is  a  Sufficient  Consideration. — The  considera- 
tion to  support  the  promise  to  pay  the  debt  of  another  is  the  same 
as  in  other  contracts,  and  when  sufficient  the  statute  of  frauds  does 
not  apply,  as  it  is  a  new  consideration.  There  is  a  sufficient  con- 
sideration to  support  an  agreement  to  answer  for  the  debt  of  an- 
other, when  the  creditor  is  induced  by  the  promisor  to  relinquish 


Mississippi. — May  v.  Williams,  61 
Miss.  125. 

Missouri. — Bissig  v.  Britton,  59 
Mo.  204. 

Ohio.  —  Ferrell  v.  Maxwell,  28 
Ohio  St.  383. 

Pennsylyania. — Nugent  v.  Wolfe, 
111  Pa.  St.  471. 

England. — Green  v.  Croswell,  10 
Ad.  &  El.  453. 

42.  Brand  v.  Whelan,  18  111.  App. 
186. 

43.  Georgia. — Jones  v.  Shorter,  1 
Ga.  294. 

Indiana. — Anderson  v.  Spencer,  72 
Ind.  315. 

Iowa. — Townsend  v.  White,  102 
Iowa  477.  71  N.  W.  337;  Mills  v. 
Brown,  11  Iowa  314. 

Massachusetts. — Phelps  v.  Stone, 
172  Mass.  355,  52  N.  E.  517;  Aid- 
rich  V.  Ames,  9  Gray  76. 

Michigan. — Potter  v.  Brown,  35 
Mich.  274. 

Minnesota.  —  Goetz  v.  Foos,  14 
Minn.  265. 


New  Hampshire.  —  DeMerritt  v. 
Bickford,  53  N.  H.  523. 

New  Jersey. — Apgar  v.  Hilar,  24 
N.  J.  L.  812. 

New  Torli. — Tighe  v.  Morrison,  116 
N.  Y.  263,  22  N.  E.  164;  Sanders  v. 
Gillespie,  59  N.  Y.  250. 

Vermont. — Braman  v.  Russell,  20 
Vt.  205. 

Wisconsin.— Earth  v.  Graf,  101 
Wis.  27,  76  N.  W.  1100;  Vogel  v. 
Melms,  31  Wis.  306. 

England. — Wilde  v.  Dudlow,  L.  R. 
19  Eq.  Cas.  198;  Cripps  v.  Hartnoll. 
4  Best  &  S.  414. 

44.  Anderson  v.  Spencer,  72  Ind. 
315;  Aldrich  v.  Ames,  9  Gray  (Mass.) 
76;  Reader  v.  Kingman,  13  C.  B.  (N. 
S.)   344. 

45.  Dunn  v.  West,  5  B.  Mon.  (Ky.) 
376;  Lucas  v.  Chamberlain,  8  B. 
Mon.  276. 

See,  also,  Read  v.  Nash,  1  Wils. 
305;  DeWolf  v.  Rebaud,  1  Pet.  (U. 
S.)  476,  7  L.  Ed.  227;  Emerson  v. 
Slater,  22  How.  (U.  S.)  28,  16  L. 
Ed.  360. 


403     Guaranty  Within  the  Statute  of  Frauds.   §  385 

a  valid  lien  which  he  has  upon  property  to  secure  a  debt/"  A 
promise  to  pay  the  debt  of  another  arising  out  of  some  new  con- 
sideration or  benefit  to  the  promisor,  or  harm  to  the  promisee 
moving  to  the  promisor,  either  from  the  promisee  or  the  original 
debtor,  is  not  within  the  statute,  although  the  original  debt  still 
subsists  and  remains  unaffected  by  such  agreement.''^  It  being 
the  own  debt  of  the  promisor,  he  cannot  therefore  rely  upon  the 
statute  of  frauds  as  being  a  promise  to  pay  the  debt  of  another.*^ 
A  mere  verbal  promise  to  be  liable  for  costs  in  a  suit  is  void  for 
want  of  a  written  contract/*  But  if  the  sureties  execute  the  obli- 
gation for  costs  themselves,  and  the  consideration  was  the  institu- 
tion of  a  suit,  it  will  bind  them.^'' 

§  385.  Novation. — In  every  novation  there  are  four  essentials  : 
A  previous  valid  contract  or  obligation,  an  agreement  of  all  the 
parties,  of  whom  there  must  be  at  least  three,  to  the  new  contract, 
the  extinguishment  of  the  old  debt,  and  a  valid  new  one.  Unless 
the  old  debt  is  extinguished  the  new  agreement  is  without  con- 
sideration. The  creation  of  the  new  obligation  and  the  extinguish- 
ment of  the  old  take  place  at  the  same  time,  and  the  statute  of 
frauds  does  not  apply.^^     Where  the  original  debtor  is  discharged 

46.  Bluthenthal  v.  Moore,  106  Ga.  48.  Stebbins  v.  Scott,  172  Mass. 
424,  32  S.  E.  344.  356,  52  N.  E.  535. 

As  to  relinquishment  of  a  lien,  49.  Bullard  v.  Johns,  50  Ala.  382. 
see  §  392  herein.  50.  McDonald    v.    Wood,    118    Ala. 

47.  Florida.— Craft  v.  Hendrick.  39    589,  24  So.  86. 

Fla.  90,  21  So.  803.  51»  Georgia. — Mize     v.     Mashburn 

Illinois.— Runde  v.  Runde,  59   111.  8  Ga.  App.  408.  69  S.  E.  316. 

98;    Wilson   v.   Bevans,   58   111.   232;  Indiana, — Kelso     v.     Flaney,     104 

Hirsch   v.   Carpet  Co.,   82   111.   App.  Ind.  180. 

234.  Massachusetts.— Ellis  v.  Felt,  206 

Iowa.— Mills    V.    Brown,    11    Iowa  Mass.  472,   92  N.  E.  702;    Troudeau 

314.  V.  Poutre,  165  Mass.  81,  42  N.  E.  508. 

Michigan. — Calkins  v.  Chandler,  36  Michigan. — Martin   v.    Curtis,    119 

Mich.  320.  Mich.  655,  77  N.  W.  690;  Murerone  v. 

Missouri. — Besshears  v.  Rowe,  46  American  Lumber  Co.,  55  Mich.  622 

Mo.  501;  Adams  v.  Huggins,  78  Mo.  22  N.  W.  67. 

App.  219.  New   Mexico. — Dougherty   v.   Van 

New  York.— Mallory  v.  Gillett,  21  Riper  (1911),  120  Pac.  333. 

N.  Y.  412.  New   York. — Ryan   v.   Pistone,   89 

PennsjiTania.  —  Clymer    v.    De-  Hun   (N.  Y.)   78,  35  N.  Y.  Supp.  81, 

Youn?,  54  Pa.  St.  118.  157  N.  Y.  705,  52  N.  E.  1126. 

Wisconsin. — Putney    v.    Farnham, 
27  Wis.  187. 


§    386  SUEETYSHIP  AND  GUARANTY.  404 

and  the  promisor  is  substituted  as  the  debtor,  the  statute  has  no 
application  to  such  transaction.''^ 

To  make  the  promise  collateral  and  bring  it  within  the  statute, 
it  must  be  a  promise  to  answer  to  the  promisee  for  the  debt,  default 
or  miscarriage  of  a  third  person,  who  is  liable  to  the  promisee 
therefor  and  continue  so  liable.^^  The  statute  never  applies  to 
contracts  of  novation,  which  must  always  be  proved.^* 

§  386.  Promise  to  Pay  the  Debt  of  Another — Statute  of 
Frauds. — Collateral  contracts  to  pay  the  debt  of  another  must  be 
in  writing  to  be  valid.  Original  and  independent  contracts  need 
not  be  in  writing,  and  a  parol  agreement  then  is  sufficient.  The 
settled  rule  is  that  where  the  agreement  to  pay  the  debt  of  another 
is  original  and  independent,  it  is  not  within  the  statute  of  frauds, 
and  of  course  need  not  be  in  writing ;  and  the  agreement  may  be 
regarded  as  original,  although  it  directly  involves  the  interest  of 
or  concerns  a  third  party,  or  may  relate  to  an  act  or  the  perform- 
ance thereof,  by  one  not  a  party  to  the  contract.'''' 

In  order  that  the  promise  shall  be  within  the  statute,  it  is  essen- 
tial that  there  be  a  binding  and  subsisting  obligation  or  liability 

52.  Hyatt  v.  Bonham,  19  Ind.  App.  5i.  Hamlin  v.  Drummond,  91  Me. 
256,  49  N.  E.  361;  Griffin  v.  Cunning-    175,  39  Atl.  551. 

ham,  183  Mass.  505,  67  N.  E.  660.  55.  Resseter    v.     Waterman,     151 

A  promise  to  answer  for  the  ob-  111.  169,  37  N.  E.  875;  Eddy  v.  Rob- 

ligation    of   another    is    deemed    an  erts,  17  111.  505;  Jones  v.  McLaugh- 

original  obligation  of  the  promisor,  lin-Patrick   Const.   Co.,   99   111.   App. 

and  need  not  be   in  writing  where  320;   Huff  v    Simmers,  114  Md.  548, 

the  promise  is  for  an  antecedent  ob-  79  Atl.  1003. 

ligation    of    another,    and    is    made       See  §  174  and  cases  there  cited, 
upon     the    consideration     that    the       A  parol  promise  to  answer  for  the 

party  receiving  it  cancels  the  ante-  debt  of   another   which   is   not   en- 

cedent   obligation    and   accepts   the  forceable  is  defined  to  be  "  an  un- 

new  promise  as  a  substitute  there-  dertaking   by   a   person   not   before 

for.      McCallum    v.    McClarren,    15  liable  for  the  purpose  of  securing  or 

Ida.  374,  98  Pac.  200.  performing  the  same  duty  for  which 

53.  Board  of  Com'rs  of  Gibson  the  party  for  whom  the  undertak- 
County  V.  Cincinnati  Steam-Heating  ing  is  made  continues  liable."  Peele 
Co.,  128  Ind.  240,  27  N.  E.  612;  Dow-  v.  Powell,  156  N.  C.  553,  73  S.  E. 
ney  v.  Hinchman,  25  Ind.  453;  Hall  234,  citing  and  approving  Sheppard 
v.  Alford,  105  Ky.  664,  20  Ky.  Law  v.  Newton,  139  N.  C.  533,  52  S.  E. 
Rep.  1482,  49  S.  W.  444;   Hargraves  143. 

V.  Parsons,  13  Mees.  &  W.  560. 


405  GuAEANTY  Within  the  Statute  of  Frauds.       §  387 

to  the  promisee  to  which  the  promise  is  collateral,  that  is,  the 
part}^  for  whom  the  promise  has  been  made  must  be  liable  to  the 
party  to  whom  it  is  made.^^  And  the  liability  of  the  person  for 
whom  the  promise  is  made,  to  the  promisee,  must  be  one  which  is 
capable  of  enforcement.  Unless  it  appears  that  some  person  other 
than  the  promisor  has  incurred  an  actual  liability  with  respect 
to  the  subject-matter  of  the  promise,  the  agreement  is  not  within 
the  statute,  although  the  third  person  may  be  under  an  imperfect 
or  merely  moral  obligation  to  respond."^ 

If  the  agreement  is  an  original  and  independent  one,  it  is  not 
within  the  statute ;  but  if  it  be  collateral  to  the  agreement  of  any 
person  to  answer  for  the  debt  of  that  other  person,  it  is  within 
the  statute.^^ 

§  387.  Promise  to  the  Debtor  to  Pay  His  Debt. — Contracts 
between  the  debtor  and  another  party  to  take  the  debt  and  pay  it 
as  a  consideration  of  a  new  contract  between  them  is  not  within 
the  statute.  Thus,  where  the  promisor  agrees  to  pay  the  debt  of 
the  debtor  and  takes  property  of  the  latter  as  a  consideration, 
this  is  an  original  promise  not  within  the  statute.^''    So  a  promise 

66.  Connecticnt. — Pratt    v.    Hum-  graves  v.   Parsons,   13   Mees   &  W. 

phrey,  22  Conn.  317.  561. 

Illinois. — Resseter    v.    Waterman,  A    subsequent    oral    promise    by 

151  111.  169,  37  N.  E.  875.  a  partner  to  pay  for  a  piano  pur- 
Massachusetts. — Perkins  v.  Little-  chased  by  a  minor  son  is  a  promise 

field,  5  Allen  370;  Alger  v.  Scoville,  to  pay  for  the  son's  debt  and  void 

1  Gray  391.  under  the  statute  of  frauds.  Fisher 

New  York.— Tighe  v.  Morrison,  116  v.  Lutz,  146  Wis.  664,  132  N.  W.  592. 

N.  Y.  263,  22  N.  E.  164.  59.  California.— Meyer  v.  Parsons, 

England.— Eastwood  v.  Kenyon,  11  129  Cal.  653,  62  Pac.  216. 

Ad.  &  E.  438.  Idaho.  —  Mineau       v.       Imperial 

57.  Resseter  v.  Waterman,  151  111.  Dredge  &  Exploration  Co.,  19  Ida. 
169,  37  N.  E.  875;  Downey  v.  Hinch-  458,  114  Pac.  23. 

man,  25  Ind.  453;   Smith  v.  Mayo,  1  Iowa. — Anderson  v.  Anderson,  150 

Allen   (Mass.)    160;   Tighe  v.  Morri-  Iowa  665,  130  N.  W.  716. 

son,  116  N.  Y.  263,  22  N.  E.  164.  New  Hampshire.— Gill   v.   Ferrln, 

58.  Spear  v.  Farmers  &  Mechan-  71  N.  H   421,  52  Atl.  558. 

ics'  Bank,  156  111.  555,  41  N.  E.  164;        New  York Ackley  v.  Skinner,  65 

McDowell,  Stocker  &  Co.  v.  Sharp,    Misc.  R.  142,  120  N.  Y.  Supp.  1005. 
157  111.  App.  165;   Perkins  v.  Little-        Texas.— Hill    v.    Hoeldtke     (Sup. 
field,     5    Allen    (Mass.)    370;    Har-    1912),  142  S.  W.  871  affg.  (Civ.  app> 

1910),  128  S.  W.  642. 


§§  388,  389  (SuEETYSiiir  and  Guaranty.  406 

to  a  chattel  mortgagee  by  a  purchaser  of  the  mortgagor's  property, 
to  pay  the  debtor's  obligation,  is  not  within  the  statute,  as  the 
property  taken  is  a  sufficient  consideration. *'''  So  taking  the  assets 
of  a  partnership  and  agreeing  to  pay  its  debts  is  an  original  ob- 
ligation, and  the  statute  does  not  apply.®^  And  the  promise  of  the 
grantee  of  land  to  pay  the  incumbrance  on  the  land  sold,  as  part 
of  the  consideration,  is  not  within  the  statute.^'  In  all  such  trans- 
actions where  the  promisor  receives  a  consideration,  the  transac- 
tion is  not  collateral,  but  original,  and  need  not  be  reduced  to  writ- 
ing. 

§  388.  To  Whom  Credit  is  Given. — Whether  a  contract  comes 
within  the  statute  of  frauds  depends  wholly  on  the  agreement.  If 
the  party  agrees  to  be  originally  bound,  the  contract  need  not  be 
in  writing ;  but  if  his  agreement  is  collateral  to  that  of  the  prin- 
cipal debtor,  it  is  that  of  a  surety  to  another,  and  the  agreement 
must  be  in  writing.  It  makes  no  difference  in  such  cases  whether 
the  promise  is  made  prior  to  the  passing  of  the  consideration  or 
afterwards.  If  it  is  made  before,  and  is  a  part  of  the  original  con- 
tract that  security  shall  be  given,  then  the  original  consideration 
ior  the  contract  will  be  sufficient  to  uphold  the  promise;  but  if 
lthe  promise  is  made  after  the  original  contract  has  been  fully  exe- 
.cuted,  then  the  promise  must  be  based  upon  a  new  consideration. 
In  either  case  the  contract  must  be  in  writing,  and  the  latter  must 
'iiave  a  new  consideration.-^ 

§  389.     Indorsing    and    Executing    Notes    for    Another. — An 
agreement  to  execute  a  note  as  surety  for  another  is  a  promise  to 

TVasliington. — Don  Yook  v.  Wash-  Indiana. — Lance    v.     Pearce,     101 

ington   Mill    Co.,    16   Wash.    459,    47  Ind.  595. 

Pac.  964.  Iowa. — Langdon  v.  Richardson,  58 

60.  Provenchee  v.  Piper,  68  N.  H.  Iowa  610,  12  N.  W.  622. 

31   36  Atl.  552.  Massachusetts. — Walker    v.    Hill, 

Uhert  V.  Schonger,  144  App.  Div.  119  Mass.  249;  Cahill  v.  Bigelow,  18 

(N.  Y.)  696,  129  N.  Y.  Supp.  545.  Pick.  369. 

61.  Shufeldt  v.  Smith,  139  Mo.  267.  Missouri.— Glenn    v.     Lehnen,    54 

62.  Flint  V.   Winter  Harbor  Land  Mo.  45. 

Co.,  89  Me.  420,  36  Atl.  634.  IVew   York.— Rogers   v.   Kneeland, 

Compare    Parsons    v.    Kelso,    141  13  Wend.  114. 

Mo.  App.  369,  125  S.  W.  227.  Wisconsin.— Champion  v.  Doty,  31 

6.^  Illinois.— Moshier   v.   Kitchell,  Wis.  190. 
87  111.  18. 


40i7     Guaranty  Within  the  Statute  of  Frauds.     §§  390,  391 

answer  for  his  debt,  and  must,  therefore,  be  in  writing/*  So  an 
agreement  by  a  third  party  to  draw  for  a  creditor  a  draft  for  his 
debtor  for  the  amount  of  his  own  debt,  is  a  promise  to  pay  the 
debt  of  another,  and  must  be  in  writing.*^'^ 

§  390.  Assignment  of  Promissory  Notes. — The  statute  of 
frauds  in  relation  to  the  liability  of  an  assignor  of  a  promissory 
note,  is  not  applicable  to  cases  where  a  guaranty  accompanies  the 
assignment.^^  The  assignor  owes  the  assignee,  and  that  particular 
mode  of  paying  him  is  adopted.  He  guarantees,  in  substance,  his 
own  debt.  Though  the  debt  of  a  third  person  be  incidentally  guar- 
anteed, it  is  not  necessary  that  the  contract  shall  be  in  writing." 
The  case  of  a  holder  of  a  third  person's  note  assigning  it  for  value 
with  a  guarant}-,  is  in  effect  the  paying  his  own  debt ;  though  he 
incidentally  guarantees  the  debt  of  a  third  person.  It  is  not 
"within  the  statute  of  frauds. ^^ 

§  391.  Agreeing  to  Pay  Debt  of  Contractor. — In  many  in- 
stances a  contractor  fails  to  pay  his  workmen  or  for  material  for 
building,  and  the  laborers  and  material  men  continue  as  before 
on  the  promise  of  the  owner  of  the  building  that  he  will  see  that 
they  are  paid.     The  general  rule  in  such  cases  is  this :    WTiere  the 

64.  Dee  v.  Downs,  57  Iowa  589,  11       67.  Darst  v.  Bates,  95  111.  493. 

N.  W.  2;  Willis  v.  Shinn,  42  N.  J.  L.  68.  Indiana.— Beaty    v.    Grim,    18 

138;  Greenwich  Bank  v.  Oppenheim,  Ind.  131. 

133  App.   Div.   586,  118  N.  Y.  Supp.  Micliigran.— Thomas    v.    Dodge,    8 

297;    Harburg   India   Rubber   Comb  Mich.  50. 

Co.  V.  Martin,  71  Law  J.  K.  B.  529  Minnesota.— Wilson  v.  Hentges,  29 

(1902),  1  K.  B.  778,  50  Wkly.  Rep.  Minn.  102,  12  N.  W.  151. 

449   86  Law  T.  505.  Missonri. — Barker   v.   Scudder,   56 

Compare     Baker     v.    Berry     Hill  Mo.  272. 

Mineral  Springs  Co.,  109  Va.  776,  65  ^ew  York.— Cardell  v.  McNeil,  21 

S.  E.  656.  N.  Y.  336. 

See  Weeks  v.  Parsons,  176  Mass.  ^orth  Carolina.— Peele  v.  Powell, 

570,  58  N.  E.  157,  as  to  parol  agree-  156  N.  C.  553,  73  S.  E.  234. 

ment  between  indorsers.  Pennsylvania,~Malone  v.  Keener, 

65.  Chaplin   v.   Atkinson,   45   Ark.  44  Pa.  St.  107. 

€7;  Carville  v.  Crane,  5  Hill  (N.  Y.)  Wisconsin. — Wyman    v.    Goodrich, 

483.  26  Wis.  21. 

66.  Smith  v.  Finch,  2  Scam.  (111.)  Compare  Harsinger  v.  Newman,  83 
321.  Ind.  124;   Dows  v.  Sweet,  120  Mass. 

322,  127  Mass.  364,  134  Mass.  140. 


§    391  SUEETYSHIP  AND  GUARANTY.  408 

leading  object  of  the  undertaking  is  to  promote  some  objects  of  the 
parly  s  own,  his  promise  to  pay  is  not  within  the  statute,  although 
its  eit'ect  is  to  release  or  suspend  the  debt  of  another.  Thus,  where 
a  party  had  employed  a  contractor  to  build  a  house,  who  fails  on. 
account  of  financial  inability  to  pay  his  workmen  and  material 
men,  and  the  person  who  is  benefited  by  the  performance  of  the 
contract,  in  order  to  make  the  performance  possible,  promises  to 
pay  for  the  labor  and  materials  if  the  laborers  and  material  men 
will  go  on,  such  a  promise  is  to  answer  for  the  debt  of  another, 
yet  it  is  not  a  contract  of  surety,  and  need  not  be  in  writing. 
Such  a  promise  is  original,  and  not  within  the  statute.^^  Because 
the  leading  object  is  to  promote  some  interest  of  his  own,  and  so 
the  promise  is  not  within  the  statute,  although,  the  effect  is  to 
release  or  suspend  the  debt  of  anotherJ** 

The  distinction  is  between  a  promise,  the  object  of  which  is 
to  promote  the  interest  of  another,  and  one  in  which  the  object  is 
to  promote  the  interest  of  the  party  making  the  promise.  The 
former  is  within  the  statute ;  the  latter  is  not  affected  by  it.  But 
when  the  promisor  is  himself  to  receive  the  benefit  for  which  the 
promise  is  exchanged,  it  is  not  usually  material  whether  the  ori- 
ginal debtor  remains  liable  or  notf^  this  is  the  general  rule,  but 
there  are  cases  which  hold  that  the  statute  applies  in  spite  of  the 
benefit  obtained,  if  the  original  liability  is  allowed  to  remain.^^ 

69.  Nelson    v.    Boynton,    3    Met.       Massachusetts. — Walker    v.    Hill, 
(Mass.)  396;  Hall  v.  Alfred,  105  Ky.    119  Mass.  249. 

664,  20  Ky.  Law  Rep.  1482,  49  S.  W.  New  York.— See  Roussel  v.  Mat- 

444;    Roussel  v.  Matthews,  62  App.  thews,  62  App.  Div.  1,  70  N.  Y.  Supp. 

Div.   (N.  Y.)    1,  70  N.  Y.  Supp.  886,  886,  affirmed  171  N.  Y.  634,  63  N.  B. 

affirmed  in  171  N.  Y.  634,  63  N.  E.  1122. 

1122;     Pizzi     v.     Nardello,     23     Pa.  Ohio.— Crawford     v.     Edison,     45 

Super.  Ct.  535;   May  v.  Walker,  20  Ohio  St.  239,  13  N.  E.  80. 

Pa.  Super.  Ct.  581.  Pennsylyania.— Merriman    v.    Mc- 

See  Meldrum  v.  Kenefick,  15  S.  D.  Manus,  102  Pa.  St.  102. 

370,  89  N.  W.  863.  Wisconsin. — Kelly   v.   Schupp,   60 

But  compare  Wood  v.  Atlantic  &  Wis.  76,  18  N.  W.  725. 

N.  C.  R.  Co.,  131  N.  C.  48,  42  S.  E.  71.  Calkins  v.  Chandler,  36  Mich. 

462;    Boorstein  v.  Moffatt,  36  Nova  324;   Jefferson  v.  Slagle,  66  Pa.  St. 

Scotia  81.  202. 

70.  United  States.  —  Emerson  v.  72.  Sext  v.  Geise,  80  Ga.  698,  6  S. 
Slater,  22  How.  28,  43,  16  L.  Ed.  360.  E.  174;   Wilhelm  v.  Voss,  118  Mich. 

Illinois.— Clifford  v.  Luhring,  69  106,  76  N.  W.  308;  Morrissey  v.  Kin- 
Ill.  401.  sey,  16  Neb.  17,  19  N.  W.  454. 


409  Guaranty  Within  the  Statute  of  Feauds.       §  392 

§  392.  Relinquishment  of  a  Lien. — If  there  is  a  new  considei- 
atiou  moving  from  the  promisee  to  the  promisor,  then  the  super- 
added consideration  makes  a  new  agreement,  which  is  not  within 
the  statute  of  frauds.  Thus,  where  a  party  releases  a  chattel  mort- 
gage upon  property,  and  allows  the  mortgagor  to  sell  the  property, 
in  consideration  that  his  debt  shall  be  paid  when  the  money  is 
received  from  the  property  thus  sold,  the  oral  promise  to  pay  the 
mortgagee  who,  of  course,  holds  the  note,  subject  to  a  lien  for  a 
debt  incurred  by  former  owner,  who  agrees  to  pay  the  lien  to  the 
holder  of  the  lien  forbearing  to  enforce  the  same,  is  not  a  promise 
to  pay  the  debt  of  another,  and  is  not  within  the  statute.''^  So 
also  if  the  owner  of  a  vessel  subject  to  a  lien  for  a  debt  incurred 
by  the  former  owner,  agrees  to  pay  the  lien,  on  the  holder  of  the 
lien  forbearing  to  enforce  the  same,  this  is  not  a  promise  to  pay 
the  debt  of  another  within  the  statute  of  frauds,^*  So  where  the 
creditor  has,  in  consideration  of  the  promise  of  a  third  person, 
relinquished  some  lien  or  advantage  for  securing  his  debt,  and 
transfers  that  interest  or  some  equivalent  thereof  to  the  third 
party,  it  is  a  new  and  independent  contract  between  the  parties, 
although  the  result  is  that  the  pa^Tnent  of  the  debt  of  another  is 
incidentally  or  indirectly  affected.^^ 

But  the  weight  of  authority  is  that  if  there  is  no  other  consider- 
ation for  the  promise,  and  the  release  of  the  lien  upon  the  property 
was  not  beneficial  to  the  promisor,  such  promise  to  pay,  unless  in 
writing,  would  be  void  under  the  statute.''® 

But  there  is  a  conflict  of  authority.  In  Wisconsin  it  has  been 
held,  which  seems  to  militate  against  some  prior  decisions,  that 
so  long  as  the  original  debt  remains  payable  by  the  debtor  to  his 

73.  Bluthenthal  v.  Moore,  106  Ga.  work  for  a  sub-contractor,  was  en- 
424,  32  S.  E.  344;  Powers  v.  Rankin,  titled  to  a  lien  therefor,  but  waived 
114  111.  52,  29  N.  E.  185;  Fears  v.  his  right  upon  the  promise  of  the 
Story,  131  Mass.  47.  contractor  to  pay  the  amount   due 

74.  Fears  v.  Story,  131  Mass.  47.  him,     there     was     an     independent 

75.  Simpson  v.  Carr,  25  Ky.  Law  promise  on  the  part  of  the  con- 
Rep.  849,  76  S.  W.  346;  Curtis  v.  tractor,  for  which  the  waiver  of  the 
Brown,  5  Cush.  (Mass.)  488;  Fur-  Hen  was  a  sufficient  consideration, 
bish  V.  Goodman,  98  Mass.  296.  McDonald   v.   General   Construction 

Rogers    v.    Gannett    Lumber    Co.,  Co.,  152  Iowa  273,  132  N.  W.  369. 

154  N.  C.  108,  69  S.  E.  788.  76.  Mallory    v.    Gillett,    21    N.    Y. 

Where    a   contractor    agreed    to  413:  Weisel  v.  Spence,  59  Wis.  301, 

complete  the  work  free  of  all  liens  18  N.  W.  165;  Young  v.  French,  15 

and    plaintiff,   who   had   performed  Wis.  116. 


§  392  ,Sdeetyship  and  Guaranty.  410 

creditor,  any  arrangemeut  by  whicli  another  promises  to  pay  that 
debt  is  within  the  very  letter  of  the  statute,  no  matter  from  what 
source  the  consideration  of  the  latter  promise  is  derived."  In 
New  York,  when  the  primary  debt  subsists  and  was  antecedently 
contracted,  the  promise  to  pay  it  is  original  when  it  is  founded  on 
a  new  consideration  moving  to  the  promisor  or  beneficial  to  him, 
and  such  that  the  promisor  thereby  carries  under  an  independent 
duty  of  payment  irrespective  of  the  liability  of  the  principal 
debtor.'^ 

in  Massachusetts,  if  the  main  object  of  the  promisor  is  some 
benefit  to  himself,  while  the  benefit  to  the  debtor  is  only  incidental, 
the  promise  is  not  within  the  statute. ^^ 

In  other  States  a  new  consideration  of  benefit  to  the  promisor 
is  enough  to  take  the  case  out  of  the  statute  f^  and  the  purpose  of 
the  promisor  is  taken  into  consideration  in  some  of  the  States.^^ 
And  some  decisions  call  the  special  attention  to  the  intent  of  the 
parties  as  the  test  of  the  agreement  of  the  promise,  whether  ori- 
ginal or  not.^^ 

It  seems  that  the  intent  of  the  parties  and  the  various  circum- 
stances surrounding  the  transaction  and  the  character  of  the  prom- 
ise should  form  satisfactory  evidence  of  the  real  intention.^^ 

But  the  mere  forbearance  to  enforce  the  lien  is  not  sufficient  to 
take  the  case  out  of  the  statute  ;^^  and  where  the  lien  is  not  re- 
leased by  the  holder,  the  promise  must  be  in  writing.^"* 

77.  Hooker  v.  Russell,  67  Wis.  257,  Jfebraska. — Fitzgerald  v.  Morris- 
30  N.  W.  358.  ses,  14  Neb.  198,  15  N.  W.  233. 

78.  White  v.  Rintoul,  108  N.  Y.  222,  Vermont.— Green  v.  Burton,  59  Vt. 
15  N.  E.  318.  423. 

79.  Nelson  v.  Boynton,  3  Met.  83.  Montstephen  v.  Lakeman,  L. 
(Mass.)   396.  R.  5  Q.  B.  613. 

80.  Westmoreland  v.  Porter,  75  84.  Iowa. — Vaughn  v.  Smith,  65 
Ala.    452;    Chaplin    v.    Atkinson,    45  Iowa  579,  22  N.  W.  684. 

Ark.  67.  Maine. — Stewart   v.   Campbell,   58 

81.  Spann  v.  Cochran,  63  Tex.  240.  Me.  459. 

82.  Illinois.— Clifford  v.  Luhring,  Missouri.— Music  v.  Music,  7  Mo. 
69  111.  401.  495. 

Massaehnsetts. — Stratton  v.  Hill,  New  Hampshire. — Lang  v.  Henry, 
134  I\Iass.  27.  54  N.  H.  57. 

Michigan. — Corkina  v.  Collins,  16  New  York. — White  v.  Rintoul,  108 
Mich.  478.  N.  Y.  222,  15  N.  E.  318. 

85.  Griffin  v.  Hoag,  105  Iowa  499, 
75  N.  W.  372. 


•411     Guaranty  Witkia'  the  Statutk  oi-  Frauds.     §§  393,  394 

§  393.     Promise  to  Perform  the  Obligation  of  Another  Person. 

— Wherever  there  is  in  existence  an  obligation  on  the  part  of  an- 
other, a  promise  to  perform  that  obligation  if  he  does  not, 
is  not  withtin  the  statute  if  it  is  made  upon  a  new  consideration 
inuring  to  the  benefit  of  the  promisor,  although  the  former  obliga- 
tion is  not  extinguished,  provided  the  chief  purpose  of  the  prom- 
isor is  to  obtain  a  benefit  for  himself.^® 

But  where  the  former  obligation  is  not  extinguished,  or  where 
the  new  obligation  is  not  substituted  for  it  as  a  new  considera- 
tion, such  promise  is  within  the  statute,  and  must  be  in  writing 
to  be  enforceable.*'' 

§  394.  Del  Credere  Contracts. — Del  cj-edere  is  a  contract 
where  the  agent  or  factor,  in  consideration  of  an  increase  of  com- 
mission, absolutely  engages  to  pay  to  his  principal  the  price  of 
the  goods  which  he  sells  for  his  consignor,**  It  is  in  the  nature  of 
a  contract  of  guaranty,  where  the  factor  or  broker  guarantees  his 
sales.  Such  an  undertaking  does  not  come  within  the  statute  of 
frauds ;  it  is  not  collateral,  but  an  original  contract,  an  absolute 
agreement  that  the  prices  for  which  the  goods  are  sold,  or  the 
debt  created  by  the  sale  of  the  goods,  shall  be  paid  to  the  principal 
when  the  credit  given  on  the  sale  shall  have  expired.** 

The  liability  of  the  factor  is  original,  and  his  guaranty  need 
not  be  in  writing.*''    The  del  credere  guaranty  is  an  original  one 

86.  Illinois. — Powers    v.    Rankin,       Examine: 

114  111.  52.  Indiana.— Palmer  v.  Blinn,  55  Ind. 

Massachusetts. — Walker    v.    Hill,  11. 

119  Mass.  249.  Iowa. — Vaughn  v.  Smith,  65  Iowa 

Nebraska.— Fitzgerald   v.   Morris-  579,  22  N.  W.  684. 

«ey,  14  Neb.  198,  15  N.  W.  233.  Michigan.— Studley   v.    Earth,    54 

Oliio.— Crawford     v.     Edison,     45  Mich.  6,  19  N.  W.  568. 

Ohio  St.  239,  13  N.  E.  80.  Pennsylvania.— Haverly    v.    Mer- 

Pennsylvania. — Merriman    v.    Me-  cer,  78  Pa.  St.  257. 

Manus,  102  Pa.  St.  102.  Wisconsin.— Hooker     v.     Russell, 

Tennessee.— Lookout  M.  R.  Co.  v.  67  Wis.  257,  30  N.  W.  358. 

Houston,  85  Tenn.  224,  2  S.  W.  36.  88.  National  Rubber  Co.  v.  Sims, 

Texas.— Spann  v.  Cochran,  63  Tex.  44  Neb.  148,  62  N.  W.  514. 

240.  89.  Bradley  v.  Richardson,  23  Vt. 

87.  Sext  V.  Geise,  80  Ga.  698;  Bias-  720;  2  Blatchf.  343. 

dell  V.  Euckson,  157  111.  App.  615;  90.  Swan  v.  Nesmith,  7  Pick. 
Palmer  v.  Blinn,  55  Ind.  11.  (Mass.)   220. 


§  395  Suretyship  and  Guaranty.  412 

entered  into  in  performance  of  the  guarantor's  own  responsibility, 
and  in  no  sense  a  special  promise  to  pay  the  debt  of  another  within 
the  meaning  of  the  statute  of  frauds.'*^  The  weight  of  authority 
in  the  United  States  is  that  the  contract  is  made  directly  with 
the  principal,  to  pay  him  on  the  expiration  of  the  term  of  credit, 
whether  the  purchaser  be  solvent  or  not,  and  is  an  original  un- 
dertaking without  any  relation  to  the  debt  or  liability  of  another. 
The  law  allows  the  factor  to  sue  in  his  own  name  for  the  debt; 
and  the  principal  has  also  the  right  to  sue,  but  not  the  exclusive 
right.  But  this  does  not  convert  an  express  original  undertaking 
of  the  factor  with  his  principal  absolutely  to  pay  a  debt  at  ma- 
turity, into  a  collateral  and  conditional  agreement  to  pay  the  debt 
if  the  purchaser  does  not.  The  guaranty  by  the  factor  differs 
very  especially  from  a  promise  to  pay  the  debt  of  another  in  an- 
other particular:  The  principal  transfers  a  right  in  his  ovni 
name  to  collect  the  debt  and  hold  the  money,  accounting  only  for 
the  net  proceeds.  But  this  does  not  come  within  the  statute  of 
frauds.^^  Some  late  English  cases  and  a  few  American  cases  hold 
that  the  factor's  liability  is  as  a  surety  merely,  and  his  contract  of 
guaranty  comes  within  the  statute.  But  the  great  weight  of  au- 
thority in  the  United  States  is  to  the  effect  that  one  who  sells  under 
such  a  commission  is  liable  absolutely  and  originally  to  his  prin- 
cipal, or  consignor,  and  the  contract  does  not  come  within  the 
statute  of  frauds.'^ 

§  395-  To  Whom  the  Promise  Must  Be  Made. — In  order  that 
the  promise  may  be  within  the  statute,  it  must  be  made  to  the 
creditor  under  either  rule.***    Hence,  a  promise  made  to  the  debtor 

91.  Minnesota. — Osborne  v.  Baker,  Cleasby,  4  Maule  &  Sel.  566;  Peele 

34  Minn.  307,  25  N.  W.  606.  v.  Northcote,  7  Taunt.  478. 

Missouri. — Seeman    v.    Inman,    6  92.  Sherwood  v.   Stone,   14   N.   Y. 

Mo    App.  384.  267. 

New  Jersey. — Bullowa  v.  Orga,  57  93.  Lewis  v.  Brehme,  33  Md.  112; 

N.  J.  Eq.  428,  41  Atl.  494.  Balderstone  v.  National  Rubber  Co.. 

New    York.— Wolff   v.    Koppell,    5  18  R.  I.  338,  27  Atl.  507. 

Hill  458.  See,   also,   Mackenzie  v.   Scott,   6 

England. — Courturier  v.  Hastie,  8  Bro.  P.  C.  280;   Grove  v.  Dubois,  1 

Exch.  40;    Wickham  v.  Wickbam,  2  Term  R.  112. 

Kay  &  J.  478;    Grover  v.  D-ubois,  1  S4.  Crim    v.    Fitch,    53    Ind.    214; 
Term  R.  112;   Bize  v.  Dickanson,  1  Aldrich  v.  Ames,  9  Gray  (Mass.)  76; 
Term  R.  285.     Some  English  cases  Lee  v.  Newman,  55  Miss.  365;  East- 
hold    a    contrary    view — Morris    v.  wood  v.  Kenyon,  11  Ad.  &  E.  438. 


413  Guaranty  Within  the  .Statute  of  Feauds.       §  396 

to  pay  a  debt  which  he  owes  himself  to  a  third  person  is  not  a 
promise  to  answer  for  the  debt  of  another  within  the  meaning  of 
the  statute.^^ 

It  cannot  be  said  that  the  promise  to  indemnify  the  surety  is 
made  to  him  as  debtor  and  not  as  creditor.  The  surety  and  prin- 
■cipal  are  bound  to  the  creditor.  It  is  when  the  surety  has  changed 
his  relation  of  debtor  to  the  creditor  and  assumed  that  of  creditor 
to  his  principal,  by  paying  to  the  original  creditor  the  debt  for 
which  both  he  and  his  principal  were  bound,  that  a  right  arises 
to  go  against  the  guarantor  on  his  contract.  It  is  to  the  surety 
under  a  conditional  and  contingent  liability  that  the  promise  is 
made ;  but  it  is  to  him  as  creditor  of  the  principal,  and  not  as 
debtor,  that  a  right  of  action  arises  on  it.  Nor  is  it  sufficient  to 
take  the  case  from  the  operation  of  the  statute  that  the  liability 
of  the  principal  arises  by  implication  rather  than  by  express  con- 
tract. This  is  the  doctrine  held  by  those  courts  which  require  the 
contract  of  indemnity  to  be  in  writing.^^ 

§  396.  Contract  for  the  Benefit  of  the  Promisor. — In  some 
•States  the  rule  is  that  it  is  a  presumption  of  law,  that  if  any 
direct  benefit  to  the  promisor  is  the  object  sought  to  be  obtained  by 
his  promise,  he  must  be  understood  to  intend  an  original  under- 
taking, which  is  not  within  the  statute.^^ 

And  wherever  there  is  in  existence  an  obligation  on  the  part  of 
another,  a  promise  to  perform  that  obligation  if  he  does  not,  or 
to  guarantee  his  performance,  is  not  within  the  statute,  if  it  is 

9'5.  Windell   v.   Hudson,   102   Ind.  ation   as   consideration.     Where   In 

521;  Ware  v.  Allen,  64  Miss.  545,  1  consideration    that    plaintiff    would 

So.  738;  Hoil  v.  Bailey,  58  Wis.  434,  continue   in    the   service   of   a   cer- 

17  N.  W.  322.  tain  corporation  in  the   success  of 

96.  May  v.  Williams,  61  Miss.  125.  which  defendant  was  financially  In- 
So  under  whichever  doctrine  the  terested,  the  latter  promised  and 
promise  is  made,  it  must  be  made  to  agreed  to  pay  her  the  compensa- 
the  creditor.  tion   to   become   due   for  her   work 

97.  Westmoreland  v.  Porter,  75  in  reliance  on  which  plaintiff  con- 
Ala.  452;  Chapline  v.  Atkinson,  45  tinned  in  the  employment,  it  was 
Ark.  67;  Lerch  v.  Gallup,  67  Cal.  held  to  be  an  original  and  not  a 
595,  8  Pac.  322.  collateral    undertaking    by    defend- 

Continnance  in  employ  of  corpor-    ant.     Conrad  v.   Clarke,  106  Minn. 

430,  119  N.  W.  214.  482. 


§  397 


SUEETYSHIP  AND  GuAEANTY. 


414r 


made  upon  a  new  consideration  inuring  to  the  benefit  of  the 
promisor,  although  the  former  obligation  is  not  extinguished,  pro- 
vided the  chief  purpose  of  the  promisor  is  to  obtain  benefit  to 
himself.^* 

§  397.     Special  Promise — When  Original  Debtor  is  Released. 

— Where  the  original  debtor  is  entirely  released  and  the  obliga- 
tion or  promise  of  another  is  substitued  in  the  place  of  that  of  the 
debtor,  who  is  discharged,  a  new  debt  is  thereby  created,  binding^ 
on  the  substituted  debtor,  which  is  not  affected  by  the  provision 
of  the  statute  of  frauds,  which  declares  that  every  special  promise 
to  answer  for  the  debt,  default  or  miscarriage  of  another  is  void 
unless  it  is  in  writing.^*  Thus,  where  a  purchaser  of  personal 
property  agreed  verbally,  in  consideration  of  the  purchase,  to  pay 


98.  Alabama.— Thornton    v.    Wil- 
liams,  71   Ala.   555. 
District  of  Columbia.— Williamson 

> .  Hill,  3  Mackey  100. 

Florida.— Craft  v.  Kendrick,  39 
Fla.  90,  21  So.  803. 

Georgia.— Bluthenthal  v.  Moore, 
106  Ga.  424,  32  S.  E.  344. 

Illinois. — Resseter  v.  Waterman, 
151  111.  169,  37  N.  E.  875;  Clifford  v. 
Luhring,  69  111.  401. 

Indiana. — Dickson  v.  Conde,  148 
Ind.  279,  46  N.  E.  998;  Edwards  v. 
Van  Cleave,  47  Ind.  App.  347,  94  N. 
E.  596. 

Massachusetts.  —  Schaeffer  v. 
Shieder,  203  Mass.  467,  89  N.  E.  618; 
Fears  v.  Story,  131  Mass.  47. 

Nebraska. — Fitzgerald  v.  Morris- 
sey,  14  Neb.  198,  15  N.  W.  233. 

Orpgon. — Harrison  v.  Birrell,  58 
Oreg.  410,  115  Pac.  141. 

Pennsjiyania. — Merriam  v.  Mc- 
Manus,  102  Pa.  St.  102. 

South  Carolina. — Lee  v.  Unkefer, 
85  S.  C.  199,  65  S.  E.  989,  67  S.  E. 
246. 

Tennessee. — Lookout  Mountain  R. 


R.  Co.  V.  Houston,  85  Tenn.  224,  2 
S.  W.  36. 

Texas. — Spann  v.  Cochran,  63  Tex. 
240. 

99.  Alabama. — Thornton  v.  Guice, 
73  Ala.  321. 

Georgia. — Howell  v.  Field,  70  Ga. 
592. 

Iowa. — Pratt  v.  Fishwild,  121 
Iowa  642,  96  N.  W.  1089. 

New  York. — Berg  v.  Spitz,  87  App. 
Div.  602,  84  N.  Y.  Supp.  532. 

Washington. — Nordby  v.  Wmson,, 
24  Wash.  535,  64  Pac.  726. 

The  liability  of  a  promisor  to 
answer  **  upon  special  promise  the 
debt,  default  or  miscarriage  of  an- 
other person  "  under  the  statute  of 
frauds,  is  governed  by  whetlier  the 
promise  creates  an  original  obliga- 
tion or  is  collateral  to  it  and 
merely  superadded  to  the  promise 
of  another  to  pay  the  debt,  he  re- 
maining liable  for  in  the  latter  in- 
stance the  promisor  is  not  liable 
unless  there  is  a  writing  to  that 
effect,  whether  the  promise  is  made 
at  the  time  the  debt  is  created  or 
not.  Peele  v.  Powell,  156  N.  C.  553, 
73  S.  E.  234. 


415 


GuAEANTY  Within  the  .Statute  of  Frauds.       §  398 


certain  debts  of  his  vendor  due  to  a  third  person,  the  promise  is 
not  a  collateral,  but  an  original  promise,  and,  hence,  not  within 
the  statute.^ 

And  when  the  promise  is  in  effect  to  pay  his  own  debt,  though 
that  of  a  third  person  be  incidentally  guaranteed,  it  need  not  be 
in  writing.^ 

§  398.  Sale  of  Goods — Liability  of  Third  Party. — A  party 
often  becomes  responsible  for  goods  sold  to  another,  and  if  the 
goods  are  supplied  entirely  on  the  credit  of  the  promisor,  so  the 
third  party  is  not  liable  at  all,  then  the  promise  to  pay  is  not 
within  the  statute.^     Where,  however,   a  third  party  would  be- 


1.  Illinois. — Borchsenius  v.  Canu- 
tson,  100  111.  82;  Meyer  v.  Hartman, 
72  111.  442;  Wilson  v.  Bevans,  58 
111.  232. 

Indiana. — Parker  v.  Heaton,  55 
Ind.  1. 

Iowa. — Brown  v.  Kortz,  37  Iowa 
239. 

Massachusetts. — Curtis  v.  Brown, 
18  Pick.  467. 

Michigan. — Malcrone  v.  American 
Lumber  Co.,  55  Mich.  622,  22  N.  W. 
67. 

Minnesota. — Yale  v.  Edgerton,  14 
Minn.  194. 

Missouri. — Robbins  v.  Apgar,  10 
Mo.  538. 

New  York. — Booth  v.  Eighmie,  60 
N.   Y.  238. 

England.— Fairlie  v.  Denton,  8  B. 
&  C.  395. 

See  §  387  herein. 

2.  Illinois.— Darst  v.  Bates,  95  111. 
493. 

Massachusetts. — Catt  v.  Roat,  17 
Mass.  229. 

Nebraska. — Palmer  v.  Witcherly, 
15  Neb.  98,  17  N.  W.  364. 

New  York. — Smart  v.  Smart,  97 
N.  Y.  559;  Mallory  v.  Gillett,  25 
N.  Y.  412. 

Pennsylvania. — Taylor  v.  Preston, 
79  Pa.  St.  436. 


3.  United  States.  —  See  Snow- 
storm Mining  Co.  v.  Johnson,  186 
Fed.  745,  108  C.  C.  A.  615. 

Alabama. — Lord  v.  Calhoun,  162 
Ala.   444,   50   So.   402. 

California. — See  Tevis  v.  Sav- 
age, 130  Cal.  411,  62  Pac.  611. 

Illinois.— Lusk  v.  Throop,  189  111. 
127,  59  N.  E.  529,  affirming  89  111. 
App.  509. 

Indiana. — Cox  v.  Peltier,  59  Ind. 
355,  65  N.  E.  6;  Lance  v.  Pearce,  101 
Ind.  595. 

Massachusetts. — Walker  v.  Hill, 
119  Mass.  249. 

Michigan. — Sutherland  v.  Coster, 
55  Mich.  151. 

Minnesota.— Grant  v.  Wolf,  34 
Minn.  32,  24  N.  W.  289. 

Montana. — Hefferlin  v.  Karlman, 
29  Mont.  139,  74  Pac.  201. 

Nebraska. — Williams  v.  Anten,  62 
Neb.  832,  87  N.  W.  1061. 

Texas. — First  National  Bank  of 
Greenville  v.  Greenville  Oil  &  Cot- 
ton Co.,  24  Tex.  Civ.  App.  645,  60  S. 
W.  828. 

Washington. — Burns  v.  Bradford 
Kennedy  Lumber  Co.,  61  Wash.  276, 
112  Pac.  359. 

Wisconsin. — West  v.  O'Hara,  55 
Wis.  645,  13  N.  W.  894. 


§  399  SUEETYSHIP  AND  GUARANTY.  416 

come  liable  for  the  property  so  sold  to  another,  it  is  collateral,  and 
the  fact  that  the  creditor  relied  chiefly  upon  the  promise  will  make 
no  difference.  If  the  credit  is  in  part  or  entirely  given  to  a  third 
person  instead  of  the  promisor,  then  it  is  within  the  statute,  if 
such  is  the  contract  where  one  agrees  to  pay  the  debt  of  another.* 
And  where  only  part  of  the  purchase  price  of  goods  has  been 
paid  by  the  purchaser,  an  agreement  by  a  third  party  to  pay  the 
balance  due  if  the  goods  are  transferred  to  him  is  not  within  the 
staute  of  frauds.^ 

§  399-  Joi^t  Liability. — If  a  party  purchases  goods  to  be  de- 
livered to  another,  or  promises  to  pay  for  goods  that  may  be  pur- 
chased and  received  by  a  third  party,  the  promise  is  clearly  an 
original  contract,  an  engagement  to  pay  his  own  debt,  and  not  the 
debt  of  another.  iSo  if  two  jointly  promise  to  pay  for  goods  deliv- 
ered to  a  second  party,  the  two  are  joint  original  debtors.  It  is  a 
joint  promise  to  pay  the  indebtedness  of  the  two  and 
not  a  promise  by  them  to  pay  the  debt  of  another.  Such  a  prom- 
ise is  not  within  the  statute.  If  the  credit  is  given  to  the  person 
to  whom  the  goods  are  delivered,  the  promise  of  a  third  person  to 
pay  for  them,  though  made  at  the  same  time,  is  a  promise  to  pay 

4.  Alabama.— Pake  v.  Wilson,  127  A'ew  Hampshire. — Walker  v.  Rich- 

Aila.  240,  28  So.  665.  ards,  39  N.  H.  259. 

Indiana. — Indiana    Trust    Co.     v.  New  Torli. — Cowdin  v.  Cottgetren, 

Finitzer,  160  Ind.  647,  67  N.  E.  520;  55  N.  Y.  650;  Chase  v.  Day,  17  Johns. 

Wills  V.  Ross,  77  Ind.  1.  114. 

Kentucky. — Hillert  v.  Harned,  143  Eliode  Island.— Wood  v.  Patch,  11 

Ky.  3,  135  S.  W.  764.  R.  I.  445. 

MassccLusetts.— Bugbee    v.    Hen-  West  Virginia.— Hurst  Hardv/are 

drickson,    130   Mass.   437;    Cahill    v.  Co.  v.  Goodman,  68  W.  Va.  462,   69 

Bigelow,  18  Pick.  369.  S.  E.  898;   Radcliffe  v.  Poundstone, 

Michigan.— Butter,    Salt    &    Lum-  23  W.  Va.  724. 

her  Co.  v.  Vogel,  130  Mich.  33,  89  N.  Though     contracts,     being     oral, 

W.  560,  8  Det.  Leg.  N.  1144;  Welch  were  originally  void  under  the  stat- 

V.  Marvin,  36  Mich.  59.  ute   of  frauds  they   may  be   subse- 

Minnesota. — Cole    v.    Hutchinson,  quently   validated   by   delivery   and 

34  Minn.  410,  26  N.  W.  319.  partial   payment.     Allen   v.   City   of 

Mississiitpi.— Bloom    v.    McGrath,  Greenwood,  147  Wis.  626,  133  N.  W. 

53  Miss.  249.  1094. 

5.  Berg  v.  Spitz,  87  App.  Div.   (N. 
Y.)   602.  84  N.  Y.  Supp.  532. 


417  GuABANTY  Within  the  Statute  of  Feauds.  §§  400,  401 

the  debt  of  another,  and  is  within  the  statute.®  When  the  sale 
of  goods  is  upon  joint  credit,  the  promise  of  two,  though  the 
property  is  purchased  for  and  delivered  to  but  one,  the  legal  effect 
as  between  them  and  the  vendor,  is  a  sale  to  the  two  jointly.  Such 
a  promise  is  an  original  one  as  between  them  and  the  promisee, 
^nd  it  is  not  within  the  statute.^ 

§  400.  Oral  Contract  of  Insurance. — An  oral  executory  con- 
tract of  insurance  is  valid,  as  it  is  an  original  contract,  and  the  stat- 
ute of  frauds  has  no  application.*  Such  contract  is  not  made  to 
answer  for  the  debt,  default  or  miscarriage  of  another,  but  is  an 
original  contract  between  the  insurance  company,  represented  gen- 
erally by  an  agent,  and  the  party  to  be  insured.^ 

§  401.  To  Answer  for  the  Torts  of  Another. — A  promise  to 
answer  for  the  torts  of  another  comes  within  the  statute  of  frauds, 
and  therefore  must  be  in  writing.  Thus,  where  a  party  has  con- 
verted the  goods  of  another,  an  oral  promise  to  answer  for  such 
tort  by  a  third  party  is  void.^*^  And  so  where  a  hirer  of  a  horse 
nnlawfully  rides  it  to  death,  an  oral  promise  by  a  third  party  to 
pay  the  damages  to  the  owner  is  not  binding,  as  it  comes  within 
the  statute  of  frauds,  under  the  words  "  miscarriage  "  and  "  de- 
fault.^^ 

6.  Hetfield  v.  Down,  27  N.  J.  L.  Ins.  Co.  v.  Colt,  20  Wall.  (U.  S.) 
440.  560,  22  L.  Ed.  423. 

7.  Boyce  v.  Murphy,  91  Ind.  1;  9'.  National  Fire  Ins.  Co.  v.  Rowe, 
Stone  V.  Walker,  13  Gray  (Mass.)  20  Ky.  Law  Rep.  1473,  49  S.  W.  422. 
€12;  Gibbs  v.  Blanchard,  12  Mich.  10.  Turner  v.  Hubbell,  2  Day 
292;    Rottman   v.  Fix,   25   Mo.   App.  (Conn.)  457. 

571.  11.  Kirkham    v.    Marter,    2    Barn. 

8.  Croft  V.  Ins.  Co.,  40  W.  Va.  508;    &  Aid.  613,  distinguishing  Reed  v. 

Nash,  1  Wilson,  305. 


27 


§  403  SUBETYSHIP  AND  GUABANTY.  418 


CHAPTER  XV. 

BAIL. 

&cnoN  402.  Bail  Defined. 

403.  Distinction  Between  Bail  and  Mainpernors. 

404.  Arrest  in  Civil  Action. 

405.  Obligation  of  Bail. 

406.  Rights  of  Bail. 

407.  Extent  of  Liability. 

408.  Discharge  of  Principal  in  Bankruptcy  or  Insolvency. 

409.  Payment  by  Imprisonment  of  Principal. 

410.  Different  Sets  of  Sureties. 

411.  Exoneration  of  Bail. 

412.  Exoneration  by  Performance  of  Condition. 

413.  Bail  in  Criminal  Cases. 

414.  Rights  and  Liabilities  of  Bail. 

415.  Implied  Contract  of  Indemnity  to  Bail. 

416.  Express  Contract  of  Indemnity  to  Bail. 

417.  Extent  of  Sureties'  Liability. 

418.  Costs. 

419.  Joint  and  Several  Liability  of  Sureties. 

420.  Effect  of  Pardon. 

421.  Delivery  of  Principal  by  Bail  to  Proper  Officer. 

422.  Bail  on  Appeal. 

423.  Appearance  of  Principal. 

424.  Re-arresting  Principal  on  the  Same  Charge. 

425.  Giving  a  New  Bond, 

426.  Arresting  Principal  on  Different  Charge. 

427.  Sureties  are  Released  by  a  Change  of  Their  Obligation. 

428.  Exoneration  of  Bail  by  Act  of  God. 

429.  Exoneration  by  Act  of  Law. 

430.  Exoneration  by  Act  of  Obligee. 

431.  Exoneration  of  Sureties  in  General. 

432.  Subrogation  in  Criminal  Cases. 

433.  Forfeiture  of  Bond. 

434.  Setting  Aside  Forfeiture. 

435.  Voluntary  Appearance  or  Arrest  After  Forfeiture  —  Costs. 

436.  Effect  of  Remission  of  Forfeiture. 

437.  Taking  Money  in  Lieu  of  Bail. 

Sec.  402.  Bail  Defined. — Bail  as  a  noun  means  one  or  more 
sureties  themselves.  It  is  the  delivery  or  bailment  of  a  person 
to  his  sureties  upon  their  giving  a  bond,  the  defendant  being  the 
principal,  for  his  appearance,  he  being  supposed  to  continue  in 


419  Bail.  §§  403,404: 

their  friendly  custody,  instead  of  going  to  prison/  As  a  verb, 
it  means  to  deliver  the  defendant  to  sureties  who  give  security 
for  his  appearance  in  court  at  the  return  of  the  writ.^ 

The  sureties  undertake  to  surrender  the  defendant  when  he  is 
called  upon  to  answer  the  charge.^  Civil  bail  is  that  bail  taken  in 
civil  cases. 

§  403.  Distinction  Between  Bail  and  Mainpernors. — Bail  and 
mainpernors  are  both  sureties  for  the  appearance  of  their  prin- 
cipal. Bail  may,  and  mainpernors  may  not,  surrender  their  prin- 
cipal. Bail  are  only  sureties  that  the  party  be  answerable  for  the 
specific  matter  for  which  they  stipulate ;  mainpernors  are  bound 
to  produce  him  to  answer  all  charges  whatsoever.*  Bail  will  only 
be  considered  in  this  connection. 

§  404.  Arrest  in  Civil  Action. — The  right  to  arrest  a  party  in 
a  civil  action  is  greatly  abridged  by  the  abolition  of  imprisonment 
for  debt.  Kow  arrests  can  be  made  only  in  actions  ex  delicto,  or 
for  torts,  in  no  wise  connected  with  a  contract.^  A  party  may  be 
arrested  when  he  perpetrates  a  fraud  in  contracting  an  indebted- 
ness, or  where  he  fraudulently  conceals  his  property  or  the  dis- 
position of  it  with  a  view  of  defrauding  his  creditors,  and  when 
he  is  about  to  abscond  with  the  purpose  of  cheating  his  creditors. 

Factors,  brokers  and  agents,  and  all  persons  in  a  fiduciary  ca- 
pacity may  be  arrested  and  held  in  bail.  A  party  may  be  arrested 
vi  et  arfnisf  for  criminal  conversation;^  for  trover  and  conver- 
sion f  for  false  imprisonment  f  for  deceit  ;^^  for  malicious  prosecu- 
tion;" for  libel  and  slander. ^^ 

1.  Bearden  v.  State,  89  Ala.  21,  7  6.  Davis  v.  Scott,  15  Abb.  Pr.  (N. 
So.    755;    Ramsey   v.   Coolbaugh,   13    Y.)    127. 

Iowa  164;    Rinhard  v.  Calemby,   49  7.  Dyott  v.  Dean,  2  Chit.  72. 

Ohio  St.  257,  31  N.  E.  35,  4  Bl.  Com.  8.  Dugins    v.    Edwards,    17    How. 

297.  Pr.  (N.  Y.)  290;  Lopenan  v.  Hender- 

2.  2  Bl.  Com.  290.  son,  4  Pa.  St.  232. 

3.  Ramsey  v.  Commonwealth,  83  9.  Cox  v.  Highley,  100  Pa.  St.  252. 
Ky.  534,  538.  10.  Redfield  v.  Frear,  9  Abb.  Pr., 

4.  Whipple  V.  People,  40  111.  App.  N.  S.  (N.  Y.)   444. 

301.  11.  Dempsey  v.  Lipp,  15  How.  Pr. 

5.  Donovan  v.  Cornell,  3  Day  (N.  Y.)  11;  Orton  v.  Noonan,  32  Wis. 
(Conn.)    339;    Bowen   v.  Burdick,  3    220. 

Clark   (Pa.)   227.  12.  Life  Ins.   Co.  v.  Ecclesine,   6 


§§    405,  406  .SUEETYSHIP  AND  GuAEANTY.  420 

§  405.  Obligation  of  Bail. — The  obligation  of  bail  arises  from 
contract  and  the  law  jointly,  which  extend  his  privilege  beyond  the 
express  condition  of  the  bond.  The  statute  generally  subjects  the 
bail  in  case  of  the  principal's  avoidance  and  a  return  of  non  est 
inventus  on  the  execution.  This  event  does  not  take  place  on  the 
omission  to  surrender  the  principal  in  court,  nor  until  after  the 
exercise  of  due  diligence  the  execution  is  legally  returned."  The 
principal  is  in  the  theory  of  the  law  committed  to  the  custody  of 
his  sureties  who  are  regarded  as  having  him  in  their  control  and 
able  to  produce  him  in  accordance  with  the  terms  of  their  obliga- 
tion or  to  surrender  him  at  any  time."  Either  the  refraining  from 
surrendering  of  the  principal  or  the  sureties'  promise  to  pay  the 
execution  on  which  the  principal  was  arrested,  is  a  consideration 
for  the  agreement  by  the  creditor  to  continue  the  matter  from 
week  to  week.^^  The  bail  in  civil  cases  sustains  the  character  of 
sureties  in  the  same  manner  as  sureties  for  an  appeal.^®  The  bail 
must  either  deliver  the  principal  at  the  time  designated  or  pay  an 
amount  not  exceeding  the  penalty,  with  costs  and  interest."  If 
the  bond  is  not  executed  in  accordance  with  the  statute,  yet  it  may 
be  a  good  common  law  obligation  and  hold  the  parties  to  their 
agreement.^ 

§  406.  Rights  of  Bail. — The  rights  of  bail  are  in  many  re- 
spects the  same  as  those  of  other  sureties.  Like  other  sureties 
they  are  discharged  by  change  in  the  contract  without  their  con- 
sent.^'    They  are  liable  for  their  principal  only,  and  not  for  a 

Abb.  Pr.  N.  S.   (N.  Y.)    23;   McCaw-  18.  Illinois.— Beveridge    v.    Chat- 
ley  V.  Smith,  4  Yeates   (Pa.)    193.  lain,  1  111.  App.  594. 

13.  Hall  V.  White,  27  Conn.  488.  Kentucky.— Hadley   v.    Swings,    4 

14.  People   V.   Hathaway,   102   111.  Bibb.  505. 

App.  628.  Maine.— Holmes  v.  Chadbourne,  4 

15.  Thomson    v.    Way,    172    Mass.    Me.  10. 

423,  52  N.  E.  525.  Massachusetts.— Bell     v.     Pierce, 

16.  Culliford  v.  Walser,  158  N.  Y.    146  Mass.  58,  15  N.  E.  119. 

65,  52  N.  E.  648.  New  Jersey.— Robeson  v.  Thomp- 

17.  New  Haven  Bank  v.  Miles,  5    son,  9  N.  J.  L.  97. 

Conn.  587.  New  York. — Haberstro  v.  Belford, 

See  State  v.  Western  Surety  Co.,  118  N.  Y.  187,  23  N.  E.  459. 

26  S.  D.  171,  128  N.  W.  173.  PennsylTania. — Koons  v.  Seward, 

Comnare  Garibaldi  v.  Cagnoni,  6  8  Watts  388. 

Mod.  266.  1®.  Bullen   v.   Dresser,   116   Mass. 


421  Bail.  '  §§  407,408 

joint  defendant.^"  The  bail  may  be  subrogated  to  the  creditors' 
rights  against  the  principal  in  civil  actions. ^^  Bail  is  not  liable 
for  their  principal's  failure.^^  The  surety  has  a  right  in  civil 
cases  of  indemnity  against  his  principal  ;^^  but  he  cannot  resort  to 
any  person  who  was  jointly  liable  with  his  principal.^  In  civil 
proceedings  the  bail  is  entitled  upon  an  implied  contract  to  in- 
demnity for  costs  incurred  incidental  to  his  position.^^ 

§  407.  Extent  of  Liability. — The  liability  of  the  sureties  on  a 
bail  bond  is  limited  by  the  penalty  of  the  bond  with  interest  from 
the  time  non  est  inventus  is  made  on  the  execution.^^  At  com- 
mon law,  whether  by  bond  to  the  officer  in  the  first  instance  or 
recognizance  in  the  court  above,  the  liability  of  the  sureties  is 
limited  by  the  penalty  named.  The  bail  bond  is  an  agreement 
to  deliver  up  the  principal  when  reasonably  demanded  to  satisfy 
the  judgment  which  the  creditor  may  recover  against  the  principal, 
not  exceeding  the  penalty  of  the  bond."  Of  course  the  interest 
and  costs  must  be  included.^** 

§  408.  Discharge  of  Principal  in  Bankruptcy  or  Insolvency. — 
The  discharge  of  the  principal  in  insolvency  or  bankruptcy  is  a 
bar  to  an  action  thereon  against  him  for  a  breach  occurring  before 
the  discharge,  but  has  been  held  not  to  release  the  sureties  on  the 
recognizance.'^     But  the  surety,  after  paying  the  liability,  may 

267;   Dean  v.  Parker,  17  ]\Iass.  591;  27.  New  Haven  Bank  v.  Miles,  5 

Campan  v.  Seeley,  30  Mich.  57.  Conn.  587. 

20.  Jackson  v.  Hampton,  10  Ired.  28.  Kenan  v.  Carr,  10  Ala.  867; 
(N.  C.)   L.  579.  Richards    v.    Morse,    36    Me.    240; 

21.  Parsons  v.  Briddock,  2  Vern.  Walker  v.  Waterman,  50  Vt.  107. 
608.  Some   decisions   hold   that  the  bail 

22.  Hinton  v.  Odenheimer,  4  Jones  are  not  liable  for  interest  on  the 
Eq.   (N.  C.)   406.  judgment     recovered     against     the 

S3.  Adair  v.  Campbell,  4  Bibb  principal.  Gray  v.  Cook,  3  Houst. 
(Ky.)   13.  (Del.)     49;     Bowyer    v.    Hewitt,    2 

24.  Cunningham       v.       Clarkson,    Gratt.  (Va.)  193. 

Wright     (Ohio)     217;     Bowman    v.  29.  Demelman  v.  Hunt,  168  Mass. 

Blodgett,  2  Met.    (Mass.)    308.  102,  46  N.  E.  436. 

25.  Fisher  v.  Tallows,  5  Esp.  171;  But  compare  People  v.  Hathaway, 
Green  v.  Creswell,  10  Ad.  &  El.  453.  206  111.  42,  68  N    E.  1053,  affirming 

26.  Heustis  v.  Rivers,  103  Mass.  102  111.  App.  628;  Bryant  v.  Kinyon, 
398.  127  Mich.   152,  86  N.  W.   531,  53  L. 

R.  A.  801,  8  Det.  Leg.  N".  801. 


§  409  Suretyship  and  Guaeanty.  422 

recover  against  the  principal,  notwithstanding  his  discharge,  when 
the  debt  is  not  made  certain  until  the  principal's  discharge.^'' 

The  fact  that  the  creditor  has  proved  his  claim  in  insolvency  upon 
judgment  against  the  debtor  is  no  bar  to  an  action  against  a  surety 
on  a  recognizance  f^  though  tlie  bail  should  have  the  benefit  of 
any  dividends  declared.  The  discharge  of  the  principal  releases 
the  bail  without  surrender  of  the  principal  if  obtained  before  the 
bail  is  fixed.^'^  After  the  bail  has  been  fixed,  and  the  right  to  sur- 
render the  principal  is  extinguished,  his  discharge  will  not  release 
the  sureties.^^ 

Though  in  other  cases  it  is  decided  that  a  discharge  in  bank- 
ruptcy extinguishes  the  claim,  thus  preventing  a  judgment  thereon 
against  the  principal  and  consequently  releases  the  surety  ;'*  or 
that  in  such  a  case  an  order  of  court  discharging  the  debtor  from 
custody  releases  the  surety  as  by  such  order  the  right  of  the  latter 
to  arrest  and  surrender  him  is  terminated.^^ 

§  409.  Payment  by  Imprisonment  of  Principal. — In  some 
cases  the  principal  debtor  can  be  arrested  and  imprisoned  for  the 
debt  if  not  paid.  At  law,  such  arrest  is  a  satisfaction  of  the  judg- 
ment so  long  as  the  imprisonment  continues,  and  during  that 
period  no  action  can  be  taken  by  the  judgment  creditor  against 
one  standing  as  surety  for  the  debt.  The  imprisomnent  suspends 
the  lien  of  the  judgment  upon  the  principal's  property,  and  the 
creditor  meanwhile  can  bring  no  action  on  the  judgment  for  its 

80.  Buel  V.  Gordon,  6  Johns.  (N.  Pennsylyania. — Boggs  v.  Teackls, 
Y.)    126.  5  Binn.  332. 

81.  Harris  v.  Hayes,  171  Mass.  Vermont — Belknap  v.  Davis,  21 
275,  50  N.  E.  532.  Vt.  409. 

82.  United  States.  —  Clagett  v.  England.— Jones  v.  Ellis,  10  Ad.  & 
Ward,  5  Cranch  C.  C.  669.  El.  382. 

Delaware. — Kennedy  v.  Adams,  5  88.  Munroe   v.   Towers,  2   Cranch 

Harr.  160.  C.  C.   187;    Demelman  v.  Hunt,  168 

Massachusetts.  —  Champion        v.  Mass.  102,  46  N.  E.  436;  Franklin  v. 

Noyes,  2  Mass.  481.  Thurber,  1  Cow.  (N.  Y.)  427;  Wool- 
New    Hampshire.  —  Nettleton    v.  ley  v.  Cobb,  1  Burr.  244. 

Billings.  17  N.  H.  453.  U.  Bryant    v.    Kinyon,    127    Mich. 

New  Jersey.— Rowland  v.  Steven-  152,  86  N.  W.  531,  53  L.  R.  A.  801;  8 

son,  6  N.  J.  L.  149  Det.  Leg.  N.  263. 

New     York.— Olcott     v.     Lilly,     4  35.  People   v.    Hathaway,    206    111. 

Johns.  407.  42,  68  N.  E.  1053,  affirming  102  HI. 

App.   628. 


423  Bail.  §§  410,411 

payment.     If  the  judgment  cannot  be  enforced  against  the  prin- 
cipal, it  cannot  be  enforced  against  the  surety.** 

§  410.  Different  Sets  of  Sureties. — As  between  different  sets 
of  sureties,  undertaking  to  secure  the  same  debt,  although  at  dif- 
ferent stages  of  legal  proceedings,  the  primary  liability  rests  upon 
the  last  set.  So  bail  upon  discharge  from  an  order  of  arrest  are 
sureties  within  the  above  rule."  The  latter  sureties  are  primarily 
liable  as  between  themselves  and  the  first  sureties ;  so  the  release 
of  the  latter  set  by  the  creditor  discharges  the  first  set,  because  it 
deprives  them  of  a  remedy  over  to  which  they  otherwise  would 
liave  been  entitled.*^ 

§  411.  Exoneration  of  Bail. — The  bail  may  be  exonerated  from 
liability  in  many  ways.  Enlistment  of  the  principal  in  the  mili- 
tary of  the  government  and  going  out  of  the  State  has  been  held 
to  release  the  bail,*^  though  many  courts  hold  a  contrary  doctrine. *° 
If  anything  happens  which  will  entitle  the  principal  to  an  imme- 
diate discharge  from  custody,  it  will  also  liberate  the  sureties 
from  liability.^^  And  they  are  released  where  by  order  of  court 
the  debtor  is  discharged,  even  though  such  order  be  erroneous.*^ 
If  judgment  is  rendered  in  favor  of  the  principal  so  it  is  impos- 
sible to  surrender  him,  the  bail  are  released,^*  even  if  the  judg- 
ment is  reversed  for  error.** 

Laches  may  discharge  the  bail  ;*^  but  not  if  no  injury  is  done 
them.**  If  the  creditor  enters  into  a  valid  agreement  with  the 
principal  by  which  time  is  given  the  latter,  the  bail  is  released.*^ 

36.  Koenig  v.  Steckel,  58  N.  Y.  475.  43.  Lockwood    v.    Jones,    7    Conn. 

37.  Toles  V.  Adee,  84  N.  Y.  222.  439. 

38.  Culliford  v.  Walser,  158  N.  Y.  44.  Butler  v.  Bissel,  1  Root  (Conn.) 
«5,  52  N.  E.  648.  102;   Duncan  v.  Tindall,  20  Ohio  St. 

39.  McFarland   v.    Wilber,    35   Vt.  567. 

342.  See  People  v.  Hathaway,  206  111. 

40.  Gingrich  v.  People,  34  111.  448;  42,  68  N.  E.  1053,  affirming  102  111. 
Huggins  V.  People,  39  111.  241;  Win-    App.  628. 

ninger  v.  State,  23  Ind.  228;  Sayward  45.  Toles  v.  Adee,  84  N.  Y.  222. 

V.  Conant,  11  Mass.  146.  46.  Vandergazelle   v.    Rodgers,    57 

41.  Shields  v.  Smith,  78  Ind.  425.  Mich.  132,  23  N.  W.  713. 

42.  People  v.  Hathaway,  102  111.  47.  Rathborne  v.  Warren,  10 
App.  628,  affirmed  206  HI.  42,  68  N.  Johns.   (N.  Y.)  567. 

E.  1053. 


§  412  Suretyship  and  Guaranty.  424 

And  in  some  States  the  refusal  to  proceed  against  the  principal 
at  the  request  of  the  bail  releases  them.^^ 

After  the  suit  is  brought  an  amendment  in  the  cause  of  action 
discharges  the  sureties ;  however,  if  the  amendment  does  not  change 
the  cause  of  action,  it  is  otherwise/^  So  by  adding  a  new  cause  of 
action  discharges  the  bail,^^  unless  the  judgment  is  rendered  on  the 
original  cause  of  action. ^^  So  a  removal  of  the  cause  of  action  re- 
leases the  bail  ;^^  so  if  the  case  is  submitted  to  arbitration.^^  Frau- 
dulent acts  of  the  creditor  will  release  the  bail.^* 

A  second  arrest  has  also  been  held  to  be  a  ground  for  releasing 
bail.^^  And  where  a  bond  provided  that  the  defendant  would 
obey  "  the  direction  of  the  court,"  and  there  could  be  no  such  di- 
rection given  as  that  designated  it  was  held  that  the  surety  could 
not  be  held  liable.^^ 

Imprisonment  of  the  principal,  however,  which  ends  before 
judgment  against  the  bail  will  not  discharge  them,"  nor  imprison- 
ment which  does  not  prevent  surrender  of  the  principal.^  But 
taking  the  principal  on  execution  releases  them.^* 

§  412.  Exoneration  by  Performance  of  Condition. — Perform- 
ance of  the  condition  of  the  bond,  or  some  act  excusing 
the  performance,  will  discharge  the  bail.  This  performance  may 
be  by  paying  the  debt  or  by  surrender  of  the  principal.^     And 

48.  Toles  V.  Adee,  84  N.  Y.  239.  57.  Sedberry  v.  Conner,  77   N.   C. 

49.  Carrington   v.  Ford,  4  Cranch    319. 

C.  C.  231;   Brown  v.  Howe,  3  Allen  58.  Steelman  v.  Mattiv,  38  N.  J.  L. 

(Mass.)   528.  247. 

50.  Hyer  v.  Smith,  3  Cranch  C.  C.  59.  Warren  v.  Gilmer,  11  Cush. 
437;  Willis  v.  Crooker,  1  PicK.  (Mass.)  15;  Milner  v.  Green,  2  Johns. 
(Mass.)   204.  Cas.  (N.  Y.)  283. 

51.  Seeley  v.  Brown,  14  Pick.  Compare  Stewart  v.  McGuin,  1 
(Mass.)  177.  Cow.  (N.  Y.)  99. 

52.  Campau  v.  Soeley,  30  Mich.  57.  60.  Ruggles  v.  Covey,  3  Conn.  419; 

53.  Bean  V.  Parker,  17  Mass.  591.  Chields  v.   Smith,  78   Ind.   425;    Ap- 

54.  Stevens   v.   Bigelow,   12   Mass.  pleby  v.  Robinson,  44  Barb.   (N.  Y.) 
437;    Bishop  v.  Earl,   17  Wend.    (N.  316;  Chase  v.  Holton,  11  Vt.  347. 
Y.)  316;  Mott  v.  Hazen,  27  Vt.  208.  Sureties    who    ghe    special    bail 

55.  Loewenthal  v.  Wagner,  69  N.  may,  in  Michigan,  surrender  their 
J.  L.  129,  54  Atl.  252.  principal    within    eight    days    after 

56.  Bristol  v.  Graff,  79  App.  Dlv.  suit  is  begun  on  the  bond,  and  sure- 
(N.  Y.)  426,  80  N.  Y.  Supp.  39.  ties   upon   a   bond   for   the   appear- 


425 


Bail. 


4ia 


where  the  undertaking  is  for  the  appearance  of  the  principal  in 
court  on  a  certain  day  and  the  surety  produces  him  in  court  on 
the  day  specified  he  is  held  to  be  released.®^  When  the  perform- 
ance becomes  impossible  by  the  act  of  God,  or  of  law,  or  of  the 
obligee,  the  bail  is  released,*^^  and  also  when  the  performance  be- 
comes useless.^* 

The  death  of  the  principal  at  any  age  of  the  suit  before  the  re- 
turn of  the  writ  against  the  principal,  entitles  the  bail  to  a  dis- 
charge.^ After  the  return  of  the  writ  and  the  bail  is  fixed,  death 
does  not  discharge  them.^^  But  death  of  the  principal  within  any 
time  fixed  by  the  statute  will  discharge  the  bail.^^ 

§  413.  Bail  in  Criminal  Cases. — By  a  recognizance  of  bail  in 
a  criminal  action  the  principal  is,  in  theory  of  the  law,  committed 
to  the  custody  of  the  sureties  as  jailers  of  his  own  choosing,  not 
that  he  is  subject  or  can  be  subjected  by  them  to  constant  im- 


ance  of  a  defendant  arrested  by 
capias  may  surrender  him  in  tlie 
same  manner  and  with  like  effect 
as  in  case  of  special  bail,  and  be 
exonerated  after  default  in  the 
terms  of  the  bond  and  within  five 
days  after  the  commencement  of 
an  action  upon  the  instrument. 
Schwarzschild  &  Sulzberger  Co.  v. 
Cryan,  167  Mich.  377,  132  N.  W.  1065. 
The  words  "to  abide  the  final 
order"  operate  to  limit,  not  to  ex- 
tend the  liability  of  the  obligors.  So 
where  a  prisoner  was  sentenced  to 
pay  a  fine  and  to  serve  a  term  on 
the  chain  gang  and  he  sought  cer- 
tiorari, giving  a  bond  to  "  person- 
ally appear  to  abide  the  final  order, 
decree,  judgment  or  sentence "  in 
the  case  and  after  dismissal  of  the 
certiorari  he  surrendered  himself 
and  served  out  the  term,  but  did 
not  pay  the  fine  it  was  decided  that 
the  condition  of  the  bond  was  com- 
plied with  by  his  surrender,  and 
that  an  action  could  not  be  main- 
tained on  the  bond  for  the  fine.  C'ty 


of  Atlanta  v.  Turner,  8  Ga.  App.  213, 
68  S.  E.  847. 

61.  Straw  v.  Kromer,  114  Wis.  91,. 
89  N.  W.  821. 

See  §  423  herein. 

62.  Taylor  v.  Taintor,  16  Wall.  (U. 
S.)  366,  21  L.  Ed.  287;  Nettleton  v. 
Billings,  17  N.  H.  453;  Palmer  v. 
Merriwether,  7  J.  J.  Marsh  (Ky.) 
506;  Steelman  v.  Mattix,  38  N.  J.  L. 
247. 

63.  Bears  v.  Haughton,  1  McLean 
(U.  S.  C.  C.)  226;  Shields  v.  Smith, 
78  Ind.  425;  White  v.  Guest,  6  Blackf. 
(Ind.)  228;  Boggs  v.  Teackle,  5  Binn. 
(Pa.)  332;  Todd  v."  Maxfield,  3  Bar. 
&  Cr.  222. 

64.  Griffin  v.  Moore,  2  Ga.  331. 

65.  Davidson  v.  Taylor,  12  Wheat. 
(U.  S.)  604,  6  L.  Ed.  743;  Hamilton 
V.  Ehinblee,  1  N.  H.  172;  Olcott  v. 
Lilly,  4  Johns.  (N.  Y.)  407;  Rawl- 
ings   v.   Gunstern,   6   Term.   R.   284. 

66.  Walsh  v.  Schulz,  13  Daly  (N, 
Y.  132;  Mount  Pleasant  Bank  v.  Pol- 
lock, 1  Ohio  35. 


^  413  Suretyship  a^d  Guaeanty.  426 

prisonment,  but  tbat  he  is  so  far  supposed  to  be  in  their  power  that 
they  may  at  any  time  arrest  him  upuu  tne  recognizance  and  surren- 
der mm  to  the  court.  To  the  extent  necessary  to  accomplish  this 
they  may  restrain  him  of  his  liberty."^ 

Although  the  rights  and  liability  of  sureties  on  a  recognizance 
are  in  many  respects  ditferent  from  those  of  sureties  on  ordinary 
or  commercial  bonds,  yet  their  positions  are  similar  in  respect  lo 
the  limitation  of  their  liability  to  the  precise  terms  of  their  con- 
tract and  the  effect  upon  such  liability  of  any  change  in  these 
terms  without  their  consent.*^ 

The  relation  of  principal  and  surety  between  the  principal  and 
his  bail  exists  only  in  a  qualified  sense.  And  it  is  against  public 
policy  to  aid  the  bail  to  relieve  themselves  from  punishment  meted 
out  to  them  for  their  neglect  in  failing  to  surrender  their  prin- 
cipal to  justice.^^  They  bind  themselves  that  their  principal  shall 
appear  and  answer  the  charge,  and  if  he  fails  to  do  so,  the  con- 
dition is  broken  and  they  become  liable  to  the  penalty. 

Their  liability  is  limited  to  the  precise  terms  of  the  bond,  and 
if  any  change  is  made  in  the  contract  without  their  consent  they 
will  be  discharged,  though  it  inures  to  their  benefit.^*^  And  if  the 
bail  is  illegally  taken,  the  sureties  are  not  bound.^^ 

67.  Reese  v.  United  States,  9  "Wall,  terms.  Malheur  County  v.  Carter, 
(U.  S.)    13,  19  L.  Ed.  541;    State  v.    52  Oreg,  616,  98  Pac.  489. 

Sandy,  138  Iowa  580,  116  N.  W.  599;  71.  State  v.  Vion,  12  La.  Ann.  688; 

State  V.  Sureties,  4  Wyo.  347.  Governor  v.  Fay,  8  La.  Ann.  490. 

68.  State  v.  Sureties  of  Kroline,  4  The  purpose  of  requiring  bail 
Wyo.  347,  34  Pac.  3.  bonds  in  criminal  cases  is  not  to 

69.  United  States  v.  Ryder,  110  U.  enrich  the  treasury,  but  to  secure 
S.  729,  4  Sup.  Ct.  196,  28  L.  Ed.  308.  the  administration   of  justice.     The 

70.  Reese  v.  United  States,  9  Wall,  bond  is  allowed  to  be  given  for  the 
(U.  S.)    13,  19  L.  Ed.  541.  convenience    of    a    person    not    yet 

A  bail  bond  is  a  statutory  under-  proved  to  be  guilty  and  to  protect 
taking  to  pay  money  under  certain  the  state  against  the  expense  of 
conditions,  and,  to  be  enforceable,  it  keeping  such  persons  in  jail.  Fort- 
must  be  taken  in  substantial  com-  ney  v.  Commonwealth,  140  Ky.  545, 
pliance  with  the  terms  of  the  stat-  131  S.  W.  383. 

ute    authorizing    it,    and    if   not    so  The  purpose  is  to  secure  the  at- 

taken  it  can  not  be  enforced  as  a  tendance  of  defendant   upon   court, 

common   law   undertaking  and   the  rather  than  to  profit  by  its  breach, 

sureties    are    entitled    to    stand    on  State  v.   Sandy,   138   Iowa  580,   116 

their     contract     according     to     its  X.  W.  599. 


427  Bail.  §  414 

The  object  of  bail  in  civil  cases  is  either  directly  or  indirectly 
to  secure  the  payment  of  a  debt  or  other  civil  duty ;  while  the 
object  of  bail  m  criminal  cases  is  to  secure  the  appearance  of  the 
principal  before  the  court  for  the  purpose  of  public  justice. 

Payment  by  the  bail  in  a  civil  case  discharges  the  obligation  of 
the  principal  to  his  creditor,  and  is  only  required  to  the  extent 
of  that  obligation,  whatever  the  penalty  of  the  bond  or  recogniz- 
ance, whilst  payment  by  the  bail  of  their  recognizance  in  crim- 
inal cases,  though  it  discharges  the  bail,  does  not  discharge  the 
obligation  of  the  principal  to  appear  in  court ;  that  obligation  still 
remains,  and  the  principal  may,  at  any  time,  be  retaken  and 
brought  into  court. 

§  414.  Rights  and  Liability  of  Bail. —  The  bail  become  the 
bailers  of  the  principal,  though  they  cannot  actually  confine  him. 
They  may  terminate  their  obligation  by  arresting  and  surrender- 
ing him  into  the  hands  of  the  court,^^  without  process,''^  by  their 
agent  by  Avritten  authority  when  not  in  their  presence,^*  and  pur- 
sue him  into  another  State  and  arrest  him,^"  within  the  jurisdic- 
tion of  the  United  States.^^  They  may  arrest  him  on  Sunday ,^^ 
and  break  into  his  house  if  necessary  to  make  the  arrest,^^  after 
making  demand  to  enter  and  refusal  by  the  principal/®  and  may 
require  the  assistance  of  an  officer;^"  and  if  the  State  does  not 
aid  such  sureties  upon  proper  demand  to  arrest  the  principal, 
they  will  be  released. ^^ 

72.  Taylor  v.  Taintor,  16  Wall.  (U.        75.  Taylor  v.  Taintor,  16  Wall.  (U. 
S.)  366,  371,  21  L.  Ed.  287;  People  v.  S.)  366,  21  L.  Ed.  287;   State  v.  Lin- 
Paulsen,  146  111.  App.  534;    Norfolk  genfelter,  109  N.  C.  775,  14  S.  E.  75. 
V.   People,  43   111.  9;   Nicolls  v.   In-        76.  Reese  v.  United  States,  9  Wall, 
gersoll,     7     Johns.      (N.     Y.)      1!5;  (U.  S.)  13,  19  L.  Ed.  541. 

Hughes  V.   State,  28  Tex.  App.  499,  77.  Taylor  v.  Taintor,  16  Wall.  (U. 

13  S.  W.  777.  S.)   366,  21  L.  Ed.  287. 

73.  Taylor  v.  Taintor,  16  Wall.  (U.  78.  Taylor  v.  Taintor,  16  Wall.  (U. 
S.)  366,  371,  21  L.  Ed.  287;  Gray  v.  S.)  366,  21  L.  Ed.  287;  Read  v.  Case, 
Strickland,  163  Ala.  344,  50  So.  152;  4  Conn.  166. 

State  V.   Lingerfelt,   109   N.   C.   775,  79.  Read  v.  Case,  4  Conn.  166. 

14  S.  E.  75.  80.  People  v.  Paulsen,  146  111.  App. 

74.  Taylor  v.  Taintor,  16  Wall.  (U.  534;  State  v.  Cunningham,  10  La. 
S.)   366,  21  L.  Ed.  287;   State  v.  La-  Ann.  393. 

zarre,  12  La.  Ann.  166.  81.  Commonwealth    y.    Querly,    80 

Ky.  208. 


§  415         Suretyship  and  Guaeanty.  428 

If  the  bail  voluntarily  permit  their  principal  to  leave  the  State 
they  are  liable  for  his  appearance,*'^  even  if  the  principal  is  a 
minor  and  is  removed  by  his  mother;*^  nor  will  insanity  of  the 
principal  release  them  from  their  obligation  to  produce  him.'** 
JS^othing  will  release  them  but  the  death  of  the  principal  or  act 
of  God. 

However,  if  the  State  has  consented  to  the  principal's  placing 
himself  beyond  the  reach  of  the  sureties,  they  will  be  exonerated 
for  not  producing  him.^^ 

§  415.  Implied  Contract  of  Indemnity  to  Bail. — Without  an 
express  contract  of  indemnity  to  bail  in  a  criminal  action  for  the 
appearance  of  his  principal,  the  bail  cannot  maintain  an  action 
against  the  principal  to  recover  any  sum  he  may  have  been  obliged 
to  pay  by  reason  of  forfeiture  of  the  principal ;  and  so  he  is  not 
entitled  to  be  subrogated  to  the  right  of  the  State  and  to  enjoy  the 
benefits  of  the  State's  priority,  as  such  subrogation  is  against  pub- 
lic policy.^® 

But  an  implied  promise  to  indemnify  a  bail  in  criminal  cases 
may  be  sustained  in  regard  to  the  costs  which  the  bail  was  obliged 
to  pay  on  default  of  the  principal ;  but  no  such  promise  will  be 
implied  for  the  non-appearance  of  the  principal,  because  it  would 
be  against  public  policy. ^^ 

82.  United  States.  —  Taylor  v.  bone  v.  Warren,  10  Johns.  (N.  Y.) 
Taintor,  16  Wall.  366,  21  L.  Ed.  287.     587;    Niblo   v.    Clark,    3    Wend.    (N, 

loAva.— State  v.  Scott,  20  Iowa  63.  Y.)    24,  6  Wend.  236;    Bowmaker  v. 

Kentncky. — Yarborough    v.    Com-  Moore,  7  Price  223,  3  Price  214. 

monwealth,  89  Ky.  151,  12  S.  W.  143.  86.  United  States  v.  Ryder,  110  U, 

Massachusetts.  —  Hartington     v.  S.  729,  4  Sup.  Ct.  196,  28  L.  Ed.  308; 

Dennle,  13  Mass.  92.  Cripps  v.  Hartnoll,  4  B.  &  S.  414. 

Missouri. — State  v.   Horn,   70  Mo.  Compare    Reynolds    v.    Harral,    2 

466.  Strob.   fS.  C.)   87;   Simpson  v.  Rob- 
Nebraska.— King  V.  State,  18  Neb.  erts,  35  Ga.  180. 

375.  25  N.  W.  519.  87.  Jones  v.  Orchard,  16  C.  B.  614. 

Tennessee. — Devine     v.     State,     5  Expense  incurred  in  preventing  a 

Sneed  623.  breach  of  the  bond  and  in  enforc- 

83.  Starr  v.  Commonwealth,  7  ing  the  presence  of  the  principal 
Dana  (Ky.)  243.  are     recoverable,     as     where     the 

84.  Adler  v.  State,  35  Ark.  517.  surety  was  forced,  in  order  to  pro- 
8.5.  Husbands    v.    Commonwealth,    tect   himself   from   a   forfeiture,   to 

143  Ky.  290,  136  S.  W.  632;    Rath-    procure  the  issuance  of  a  requisl- 


429  Bail.  §  4 16 

And  where  there  is  a  provision  in  the  undertaking  that  the 
principal  will  put  in  an  appearance  without  trouble  or  expense 
to  the  surety  at  the  required  time,  if  the  latter  is  put  to  any  ex- 
pense to  procure  the  presence  of  the  principal  in  order  to  prevent 
a  forfeiture  he  may  recover  the  same  from  the  principal  on  the 
strength  of  the  implied  promise  in  the  bond  on  the  part  of  the 
latter  to  reimburse  him.^* 

It  has  been  held  that  bail  will  not  be  taken  who  have  secured 
indemnity  from  the  principal,  as  the  sureties  would  be  relieved 
from  any  motive  to  exert  themselves  in  securing  the  appearance 
of  the  accused/^  But  this  doctrine  does  not  apply  to  contribution 
among  sureties;  so  when  one  of  the  sureties  is  compelled  to  pay 
the  penalty  he  can  have  contribution  against  his  co-surety.®" 

§  416.  Express  Contract  of  Indemnity  to  Bail. — The  law  will 
not  enforce,  it  seems,  an  express  agreement  to  indemnify  bail  by 
the  principal,  as  it  would  be  against  public  policy.®^  But  indem- 
nity for  costs  and  expense  incurred  by  the  surety  is  valid,  and  not 
against  public  policy.®^  But  indemnity  for  the  amount  the  bail 
must  pay  as  to  the  penalty  cannot  be  collected.  And  so  where  the 
principal  has  deposited  money  as  indemnity  and  is  exonerated, 
he  cannot  recover  it,  as  the  contract  was  illegal  and  the  courts  will 
not  interfere,^^  However,  a  third  party  may  indemnify  the  bail, 
which  they  may  recover,  as  it  is  not  an  illegal  contract.®^  And 
such  contract  of  indemnity  by  a  third  party  need  not  be  in  writ- 
ing, as  the  bail  is  not  given  for  the  purpose  of  answering  for  the 
debt  of  another  in  a  civil  action,  so  the  statute  cannot  apply.®^ 

In  some  States  indemnity  to  bail  in  ciminal  cases  is  allowed. 

tion  and  to  expend  money  to  com-  92.  Harp  v.  Osgood,  2  Hill  (N.  Y.) 

pel   the   presence   of  the   principal.  216;  Jones  v.  Orchard,  16  C.  B.  614. 

Fleming  v.  Shockley,  8  Ga.  App.  229,  93.  Dunkin  v.  Hodge,  46  Ala.  523; 

68  S.  E.  1013.  Herman  v.  Jeuchner,  15  Q.  B.   Div. 

88.  Fleming    v.    Shockley,    8    Ga.  561. 

App.  229,  68  S.  E.  1013.  94.  Stevens    v.    Hay,    61    III.    399; 

89.  United  States  v.  Simmons,  47  People  v.  Ingersoll,  14  Abb.  Pr.  N.  S. 
Fed.  375.  (N.  Y.)   23;   Harp  v.  Osgood,  2  Hill 

90.  Belond  v.  Guy,  20  Wash.  160,  54  (N.  Y.)  216. 

Pac.  995.  95.  Anderson   v.   Spencer,   27   Ind. 

91.  United  States  v.  Simmons,  47  315;  Cripps  v.  Hartnoll,  4  B.  &  S. 
Fed.  375.  414. 


§§    417,  418  (SUEETYSHIP  AND  GUARANTY.  4o(> 

Hence,  a  bond  and  mortgage  given  to  indemnify  the  bail  by  the 
principal  does  not  render  them  void.^  And  so  it  is  held  that  a 
bail  may  maintain  an  action  against  their  principal  for  money 
paid  to  indemnify  them  for  what  they  have  been  obliged  to  pay 
on  their  recognizance."  There  can  be  no  valid  distinction,  in  prin- 
ciple, between  a  contract  made  by  the  accused  and  one  made  by 
somebody  else  for  his  benefit.  But  such  distinction  seems  to  exist 
in  the  text-books,  resulting  in  contracts  on  the  one  hand  being 
held  valid  and  on  the  other  hand  being  disproved.  In  view  of  the 
fact  that  contracts  for  the  indemnity  of  sureties  upon  bail  bond 
in  criminal  cases  have  been  frequently  enforced  in  the  courts,  it 
is  strong  evidence  that  they  have  been  presumed,  by  the  bar  and 
bench,  to  be  legal. ^^ 

§  417.  Extent  of  Sureties'  Liability. — The  sureties  are  only 
liable  for  the  amount  mentioned  in  the  obligatory  part  of  the  bond, 
though  a  different  and  larger  amount  be  recited  in  the  other  part 
of  the  instrument.  Thus,  where  the  obligatory  part  is  in  the  sum 
of  $2,000  and  the  condition  recites  that  the  accused  is  held  to 
bail  in  the  sum  of  $2,500,  the  only  effect  is  that  the  judgment 
which  has  been  rendered  for  $2,500  be  reduced  to  $2,000.^*  So 
where  the  principal  enters  into  a  recognizance  of  $100,  and  the 
sureties  are  bound  in  the  sum  of  $200,  they  can  be  held  only  for 
$100,  the  same  as  their  principal.^ 

^  418.  Costs. — The  costs  follow  the  judgment  by  operation  of 
law,  and  constitute  a  distinct  liability  which  is  not  discharged 
by  remission  of  the  forfeiture.^  So  when  a  party  is  pardoned  for 
a  crime  for  which  he  has  been  convicted,  this  does  not  discharge 
costs,  but  only  the  penalty.^ 

96.  Simpson  v.  Robert,  35  Ga.  180;        89.  Hodges  v.  State,  20  Tex.  493. 
Moloney  v.  Nelson,  158  N.  Y.  351,  53       1.  People  v.  Morrison,  75  Mich.  30, 
N.  E.  31.  42  N.  W.  531. 

97.  Reynolds   v.    Harral,    2    Strob.       2.  State  v.  Beebee,  87  Iowa  636,  54 
(S.  C.)  87.  N.  W.  479;   Ck)mmonwealth  v.  Ram- 
See,  also,  People  v.  Skidmore,  17  sey,    2    Duv.    (Ky.)    385;    Common- 

Cal.  260.  wealth    v.    Schick,    61    Pa.    St.    495; 

98.  Maloney    v.    Nelson,    12    App.  Chambless  v.  State,  20  Tex.  197. 
Div.  (N.  Y.)  545,  42  N.  Y.  Supp.  418,  3.  Ex    parte   McDonald,   2   Whart. 
158  N.  Y.  351,  53  N.  E.  31.  (Pa.)  440;  Holliday  v.  People,  5  Gil. 

ail.)  214. 


431  Bail.  §§  419,420 

§  419.  Joint  and  Several  Liabilities  of  Sureties. — In  many  of 
the  States  the  liablity  of  the  sureties  is  fixed  by  statute  as  to  the 
nature  of  their  liability,  whether  joint  or  several.  The  statute 
generally  provides  that  the  liability  shall  be  joint  and  several, 
which  must  control  the  terms  of  the  bond.*  And  there  is  generally 
a  provision  authorizing  a  taking  of  forfeiture  against  the  sureties, 
or  one  or  more  of  them,  with  or  without  their  principal.  In  the 
absence  of  a  statute  controlling,  the  liability  of  the  sureties  is  fixed 
by  the  terms  of  the  bond,  and  judgment  must  be  taken  accord- 
ingly.' 

§  420.  Effect  of  Pardon. — A  full  and  complete  pardon  of  the 
accused  at  a  time  subsequent  to  a  forfeiture  of  a  bail  bond  does 
not  release  the  sureties  from  liability  on  the  bond.*  Because  the 
pardon  does  not  reach  a  matter  wholly  independent  of  the  crim- 
inal offense  charged,  or  of  the  punishment  therefor  after  forfei- 
ture.^ The  pardon  relieves  the  accused  from  the  penalty  and 
nothing  more,  and  cannot  be  applied  so  as  to  relieve  the  sureties 
after  forfeiture.^ 

And  where  a  fine  and  imprisonment  are  imposed,  a  suspension 
of  the  imprisonment  by  the  governor  does  not  discharge  the  fine, 
and  the  sureties  are  still  liable.^ 

See,  also.  United  States  v.  Lancas-  Maryland.  —  Parrish   t.    State,    14 

ter,  4  Wash.  C.  C.  64;  Rowe  v.  State,  Md.  238. 

2  Bay  (S.  C.)  565.  Missouri.— State   v.    Davidson,    20 

Compare  Cade  v.  Gordon,  88  Ga.  Mo.  212. 

461,  14  S.  E.  706.  Tennessee.— Brewer    v.    State,    6 

4.  Kilgrow  V.  State,  49  Ala.  337;  Lea  198,  overruling  Scott  r.  State,  1 
Swerdofeger  v.  Gordon,  88  Ga.  461;  Head  433. 

State    v.    Lyons,    7    La.    Ann.    540;  Texas.— Ishmael  v.  State,  41  Tex. 

Avant  v.  State,  33  Tex.  Cr.  312,  26  244;  Fulton  v.  State,  14  Tex.  App.  32. 

S.  W.  411  6.  Dale  v.  Commonwealth,  101  Ky. 

5.  Alabama,— Ellison    v.    State,    8  612,  42  S.  W.  93. 

Ala.  273.  7.  Weatherwax   v.    State,    17   Kan. 

Idaho. — People  v.  Bugbee,  1  Idaho  427;  State  v.  Davidson,  20  Mo.  212. 

88.  8.  Mount     v.     Commonwealth,     2 

Illinois. — People  v.   McFarland,   9  Duv.  (Ky.)  95. 

111.  App.  275.  9.  Illinois.— Holliday  v.  People,  10 

Indiana.  —  Hildreth    v.    State,    5  111.  214. 

Blackf.  80.  Indiana.  —  State     v.     Farley,     8 

Kentncky.— Madison  v.  State,  2  A.  Blackf.  229. 

K.  Marsh.  131.  Iowa,— State  v.    Meier,    96    Iowa 


421 


SUEETYSHIP  AND  GUAKANTY. 


432 


§  421.     Delivery  of  Principal  by  Bail  to  Proper  Officer.— The 

surrender  of  the  principal  by  the  bail  to  the  proper  officer  re- 
leases them  from  further  liability/''  and  they  have  the  right  to 
pursue  him  into  any  State  within  the  United  States  and  arrest 
him  for  the  purpose  of  surrender.  And  the  fact  that  the  recog- 
nizance has  been  forfeited,  and  a  conditional  judgment  against 
the  sureties  has  been  entered,  will  not  deprive  them  of  their  rights 
to  arrest  and  surrender  him/^ 

The  surrender  should  generally  be  made  to  the  sheriff,  or  by 
a  certified  copy  of  the  bail  bond,  with  instructions  to  the  officer  to 
arrest  the  principal,^^  And  a  surrender  by  a  certified  copy  of 
the  bond  is  sufficient,  though  the  accused  is  in  prison  for  another 
<}rime."     A  voluntary  surrender  of  the  principal  is  sufficient  to 


375,  65  N.  W.  316;   Ester  v.  Lacey, 
35  Iowa  419. 

'^Missouri— State    v.    O'Blemis,    21 
Mo.  272. 

Pennsjivania. — Ex   parte   McDon- 
ald, 2  Whart.  440. 

Compare  Commonwealth  v.  Har- 
gis,  137  Ky.  1,  120  S.  W.  294,  holding 
that  under  the  Ky.  Const.  §  77,  de- 
claring that  the  Governor  shall  have 
power  to  remit  fines  and  forfei- 
tures, commute  sentences,  great  re- 
prieves and  pardons,  except  in  case 
of  impeachment  a  full  pardon  for 
contempt,  for  which  a  judgment  of 
fine  and  imprisonment  had  been  en- 
forced, relieved  the  sureties  on  the 
offender's  bail  bond  from  liability 
on  their  covenant  to  surrender  him 
in  execution  of  the  judgment  of  im- 
prisonment or  to  pay  two  dollars 
to  the  commonwealth  for  each  day 
of  the  imprisonment  adjudged. 

10.  United  States.  —  Taylor  v. 
Taintor,  16  Wall.  366,  21  L.  Ed.  287. 

Alabama. —  Miller  v.  State,  158 
Ala.  73,  48  So.  360,  20  L.  R.  /.  (N. 
S.)  861;  Bearden*v.  State,  89  Ala. 
21,  7  So.  755. 


California. — People  v.  McReynolds, 
102  Cal.  308,  36  Pac.  590. 

Georgia. — Wiggins  v.  Tyson,  112 
Ga.  744,  38  S.  E.  86. 

Illinois. — Norfolk  v.  People,  43 
111.  9. 

Iowa. — State  v.  Anderson,  119 
Iowa  711,  94  N.  W.  208;  State  v. 
Zimmerman,  112  Iowa  5,  83  N.  W. 
720. 

MlssisslpiH. — Kellogg  v.  State,  43 
Miss.  57. 

Missouri. — State  v.  Murmann,  124 
Mo.  502.  28  S.  W.  2. 

Ji'ortli  Carolina. — State  v.  Linger- 
felt,  109  N.  C.  775,  14  S.  E.  75. 

Texas. — State  v.  Rosseau,  39  Tex. 
614. 

See  Talley  v.  State,  44  Tex.  Cr. 
App.  162,  69  S.  W.  514. 

The  court  must  accept  the  sur- 
render of  the  principal  in  order  to 
discharge  the  sureties.  Du  Law- 
rence V.  State,  31  Ohio  C.  C.  418. 

11.  Bearden  v.  State,  89  Ala.  21,  7 
So.  775;  State  v.  Lingerfelt,  109  N. 
C.  775,  14  S.  E.  75. 

12.  Slemberg  v.  State,  42  Ark.  127. 
1.3.  State  V.  Trahan,  31   La.  Ann. 

715. 


433  ,  Bail.  §§  422,423 

discharge  the  sureties,  if  his  knowledge  of  the  accused  and  the 
surrounding  circumstances  is  of  that  kind  which  identifies  the 
party  as  the  one  under  bail."  And  so  if  the  principal  appears  at 
the  commencement  of  the  trial,  it  is  a  constructive  surrender  of 
him  to  the  officer,  and  the  sureties'  liability  ceases/^  But  the  sur- 
render must  be  actual,  and  not  constructive/*^ 

Where  the  statute  prescribes  the  manner  in  which  amend  is  to 
be  made,  there  must  be  a  compliance  therewith  in  order  to  dis- 
charge the  surety/^  A  statute  giving  the  right  to  sureties  on  bail 
bonds  to  surrender  their  principal  will  not  be  construed  as  giving 
the  right  of  surrender  to  a  surety  on  a  bond  given  on  appeal. ^^ 

§  422.  Bail  on  Appeal. — An  appeal  bond,  where  the  sureties 
bind  themselves  to  pay  the  fine  if  the  judgment  is  affirmed,  can- 
not be  satisfied  by  the  surrender  of  the  principal  when  the  judg- 
ment is  affirmed.  Nothing  but  payment  will  release  the  sureties' 
liability.^^  But  where  there  is  no  such  obligation  assumed  by  the 
sureties,  the  sureties'  liability  will  cease  with  the  conviction  of 
the  principal.^'' 

If  by  statute  an  appeal  bond  acts  as  a  supersedeas  of  the  judg- 
ment of  conviction  it  is  decided  that  the  bail  bond  is  not  revived 
by  a  dismissal  of  the  appeal.^^ 

§  423.  Appearance  of  Principal. — The  principal  must  appear 
at  the  date  stipulated.  He  cannot  be  required  to  appear  at  a 
time  contrary  to  that  specified.  So  when  a  day  has  been  fixed  for 
his  appearance,  but  is  changed  by  act  of  the  legislature,  and  he 

14.  Babb    v.    Oakley,    5    Cal.    94;  render    their    principal,    the    provl- 

Walter  v.  People,  28  111.  App.  645.  sions    in   regard   thereto    should   be 

low  Willis    V.    Commonwealth,    85  complied  with.     Cameron  v.  Burger 

Ky.  68,  2  S.  W.  654;  Askins  v.  Com-  (Oreg.  1912),  120  Pac.  10. 

monwealth,  1  Duv.  (Ky.)  275,  over-  18.  Talley    v.    State,    44    Tex.    Cr. 

ruling  Commonwealth  v.  Coleman,  2  App.  162,  69  S.  W.  314. 

Met.   (Ky.)   382.  19.  State  v.  Stommel,  89  Iowa  67, 

16.  State  V.  McMichael,  50  La.  56  N.  W.  263;  State  v.  Meier,  96 
Ann.  428,  23  So.  992.  Iowa  375,  65  N.  W.  316. 

17.  State  V.  Miller,  109  La.  27,  33  20.  Mitchell  v.  Commonwealth,  12 
So.  57.  Bush   (Ky.)   247;    State  v.  Schexnei- 

Where  the  statnte  prescribes  the    der,  45  La.  Ann.  1445,  14  So.  250. 
manner    in   which    bail    may    sur-        21.  Bailey   v.   State,   71  Ark.   498, 


76  S.  W.  551. 


28 


§  423 


Suretyship  and  Guaranty. 


434 


appears  according  to  his  obligation,  this  is  a  sufficient  compliance^ 
and  his  sureties  are  discharged.^^  Appearance  by  counsel  may  by 
statute  also  be  sutHcient  to  prevent  a  forfeiture.^^  But  a  clerical 
mistake  as  to  the  date  of  the  month  named  in  the  recognizance  is 
immaterial  and  will  not  discharge  him,  as  he  must  take  notice  of  the 
day  on  which  the  term  of  court  commences.^*  If,  however,  the 
time  is  specified  as  the  next  term  of  court,  and  the  time  is  changed 
by  the  legislature,  this  does  not  affect  his  liability,  and  he  must 
appear  at  the  next  term  of  court.^^  But  the  principal  is  not  re- 
quired to  appear  at  a  special  term  which  inten^enes  before  the 
regular  term."® 

The  bond  is  generally  so  made  out  as  to  require  the  principal 
to  appear  from  day  to  day,  which  he  must  do,  in  order  not  to 
forfeit  his  bond  ;^  and  also  from  term  to  term.^^  If  the  accused 
is,  by  the  terms  of  the  bond,  to  appear  when  notified,  unless  he  i& 
notified  there  can  be  no  forfeiture.'^  Where  the  only  condition  is 
that  the  accused  shall  appear  on  a  day  certain,  and  nothing  fur- 


22.  State  v.  Stephens,  2  Swan 
(Tenn.)   308. 

2S.  People  v.  Miller,  63  App.  Div. 
(N.  Y.)   11,  71  N.  Y.  Supp.  212. 

24.  Mooney  v.  People,  81  111.  134. 

25.  Walker  v.  State,  6  Ala.  350. 
Where  a  bond  is  for  appearance 

at  next  term  and  from  term  to  term 
thereafter,  where  one  is  bound  over 
to  await  action  by  the  grand  jury, 
the  surety  is  not  discharged  by  a 
failure  to  return  an  indictment  at 
the  next  term.  State  v.  Fuller,  128 
Ala.  45,  30  So.  506. 

A  statute  continuing  the  bond  in 
force,  in  case  of  a  failure  of  the 
term,  to  the  next  regular  term  is 
corstitutional.  Bartling  v.  State, 
67  Neb.  637,  93  N.  W.  1047,  97  N.  W. 
443. 

26.  State  v.  Aubrey,  43  La.  Ann. 
188,  8  So.  440;  State  v.  Houston,  74 
N.  C.  174. 


27.  Illinois.— Stokes  v.  People,  62 

111.  489. 

Indiana. — Rubush  v.  State,  112 
Ind.  107,  13  N.  E.  877. 

Michigan. — People  v.  Gordon,  39 
Mich.   259. 

New  York. — People  v.  Milham,  100 
N.  Y.  273.  3  N.  E.  196. 

Virginia. — Allen  v.  Common- 
wealth, 90  Va.  356. 

28.  Alabama. — Williams  v.  State, 
55  Ala.  71. 

Colorado. — Chase  v.  People,  2 
Colo.  328. 

Illinois. — Gallagher  v.  People,  91 
III.  590. 

Indiana. — State  v.  Whitson,  8 
Blackf.  178. 

Iowa. — State  v.  Baldwin,  78  Iowa 
737. 

Kansas. — Glasgow  v.  State,  41 
Kan.  333,  21  Pac.  253. 

29.  Louisiana  Society  for  Preven- 
tion of  Cruelty  to  Children  ▼. 
Moody,  111  La.  199,  35  So.  516. 


435  Bail.  §  423 

ther  is  required,  an  appearance  on  that  day  fulfills  that  condi- 
tion, and  if  the  court  adjourns  without  further  orders,  the  prin- 
cipal is  discharged,  and,  of  course,  his  bail  also.^" 

So  where  the  undertaking  is  to  secure  the  appearance  of  the 
principal  and  he  appears  as  required,  is  convicted,  and  taken  into 
custody  by  the  sheriff,  the  surety  is  released  and  can  not  be  held 
liable  for  his  subsequent  disappearance  where  the  court  grants 
him  a  temporary  release  from  custody  so  as  to  enable  him  to  ob- 
tain money  for  the  payment  of  his  fine.^^  Failure  to  appear  as 
provided  in  the  bond  can  only  be  excused  so  as  to  release  the  surety 
where  the  failure  was  due  to  act  of  God,  of  the  law  or  of  the  ob- 
ligee.^^  If  by  the  condition  of  the  undertaking  the  principal  is 
not  only  to  appear  at  a  certain  time,  but  also  to  be  amenable  to 
the  orders  of  the  court  at  all  times,  the  sureties  are  not  released  by 
his  appearance  at  the  designated  time  where  an  order  was  made 
by  the  court  on  the  following  day  that  he  deliver  himself  into  cus- 
tody, which  he  failed  to  do.^     If  a  change  of  venue  is  legally 

80.  Illinois. — Ogden  v.  People,  62   to  be  a  continuing  obligation   and 

111.  63.  the   sureties   not   to   be   discharged 

Missonri. — State  v.  Mackey,  55  Mo.   where  the  principal  appears  on  the 

51.  day    specified    and    the    court    ad- 

IVew    York.— See    People    v.    Mc-   journs  to  a  later  date.     St.  Louis  v. 

Kenna,   62  App.   Div.   327,   70   N.   Y.    Henning,  235,  Mo.  44,  138  S.  W.  5; 

Supp.  1057.  see,   also.   State  v.   Williams,   84   S. 

Ohio. — Swank  v.  State,  3  Ohio  St.    c.  21,  65  S.  E.  982. 

^29.  Adjourning  for  purpose  of  pass- 

Wisconsin.— State    V.    Becker,    80    jng  sentence  and  judgment.   .Where 

Wis.  313,  50  N.  W.  178.  a.  bond  given  upon  an  indictment  is 

Compare  Fossett  v.  State,  43  Tex.    conditioned   for   the   appearance   of 

Cr.  App.  117,  67  S.  W.  322.  the  defendant  to  answer  the  charge, 

31.  State  V.  Zimmerman,  112  Iowa   to  be  at  all  times  amenable  to  the 
5,  83  N.  W.  720.  orders  of  the  court,  and  that  if  con- 

32.  Ringeman    v.    State,    136    Ala.   victed  he  will  appear  for  judgment 
131,  34  So.  351.  and    the   court   upon   the    rendition 

33.  Lawrence    v.    Commonwealth,    of  a  verdict,  directed  that  the  bond 
25  Ky.  Law  Rep.  455,  76  S.  W.  10.        be    continued    until    a    certain    day, 

Not    to    depart   "  without    leave."  to  which  time  the  court  was  there- 

Where  a  bond  is  conditioned  for  ?p-  upon  adjourned  for  the  purpose  of 

pearance  on  a  day  eertain  and  that  passing     sentence     and     judgment 

the    principal     "  shall     not     depart  upon    the    defendant,    the    sureties 

thence  without  leave  first  being  ob-  were  held  liable  where  the  defend- 

tained "   from  the   court  it  is  held  ant   failed   to   appear   for   sentence. 


§  424  .Suretyship  and  Guaranty.  436 

granted,  the  liability  of  the  sureties  follows  the  siiit.^  But  when 
the  change  of  venue  is  illegally  granted  it  is  a  nullity,  and  the 
sureties  are  not  liable  for  the  non-appearance  of  the  principal  to 
the  appellate  court.^^  A  mere  granting  an  order  of  change  of 
venue  with  consent  of  the  parties,  without  further  proceedings  to 
complete  the  change,  and  which  is  set  aside  at  the  same  term  of 
court,  does  not  release  the  sureties,  although  a  change  of  venue 
perfected  would  release  them  under  the  statute.^® 

^Yhere  the  statute  provides  a  summary  remedy  for  the  enforce- 
ment of  statutory  bonds  and  by  statute  a  bail  bond  must  state  the 
term  of  court  at  which  appearance  of  the  principal  is  required 
a  bond  which  does  not  so  state  is  not  a  statutory  bond  so  as  to  permit 
of  such  enforcement." 


§  424.     Re-arresting    Principal    on    the    Same    Charge. — The 

sureties  on  a  bail  bond  are  released  by  the  re-arrest  of  the  accused 
on  the  same  charge. ^^  By  such  second  arrest  the  principal  is  placed 
in  the  control  of  the  officer  of  the  law  precisely  as  he  would  be  if 
the  bail  should  surrender  him;  therefore,  they  are  discharged 
from  further  liability."^  But  if  the  accused  does  not  appear,  and 
is  not  delivered  by  his  sureties,  then  the  court  may  arrest  him, 


People  V.  MacGregor,  147  App.  DIv.  36.  Gray    v.    Commonwealth,    100 

(N.  Y.)   488,  131  N.  Y.  Supp.  783.  Ky.  645,  38  S.  W.  1092. 

34.  "Williams  v.  McDanlel,  77  Ga.  37.  Tolle&on  v.  State,  139  Ala.  159, 

4;    State   v.    Brown,    16    Iowa   314;  35  So.  997. 

Commonwealth   v.   Austin,   11   Gray  38.  Arkansas. — State  v.   Jones,  29 

(Mass.)  330.  Ark.  127. 

Where  the  sureties  do  not  under-  Georgia. — Smith    v.    Kitchens,    51 

take  that  their  principal   shall  ap-  Ga.  158. 

pear     elsewhere     than     the     place  loTra. — State  v.  Osier,  48  Iowa  343. 

designated   and   there   is  no   provi-  Kentucky.— Medlin     v.     Common- 

sion  in  the  bond  that  he  shall  obey  wealth,    11     Bush.     605;     Common- 

the  further  orders  of  the  court  the  wealth  v.  Bronson,  14  B.  Mon.  361. 

sureties  are  not  liable  where  ha  de-  ]Vew  York.— People  v.   Stager,  10 

faults    af*er    obtaining     change    of  Wend.  431. 

venue  to  another  county.    Territory  39.  State  v.  Holmes,  23  Iowa  458; 

V.  Woodward,  15  N.  M.  161,  103  Pac.  Commonwealth   v.  Coleman,  2   Met. 

985.  (Ky.)     322;     People    v.    Stager,    10 

So,  Adams  v.  People,  12  111.  App.  Wend.   (N.  Y.)   431 
380. 


437  Bail.  §§  425,426 

and  if  he  escapes,  after  forfeiture  of  the  bond,  the  sureties  will 
be  liable/" 

When  the  sureties  surrender  the  principal  to  the  court,  then 
their  liability  ceases,  and  they  are  not  responsible  for  the  acts  of 
the  officer  of  the  court.  Their  legal  right  to  control  him  is  gone, 
and  they  cannot  be  held  to  produce  him." 

It  is  held  by  some  courts  that  an  illegal  arrest  of  the  principal 
releases  the  sureties  because  they  are  compelled  to  submit  to  the 
proceedings  of  the  court  and  are  deprived  of  the  custody  of  the 
principal.^'  But  other  courts  hold  that  an  illegal  arrest  does  not 
release  the  sureties,  because  such  second  arrest  is  a  nullity.'*' 

The  arrest  of  the  principal  on  the  same  charge  by  the  Federal 
authorities  operates  to  discharge  the  sureties  on  the  State  bond.** 

§  425.  Giving  a  New  Bond. — Where  the  principal  appears  in 
compliance  with  his  recognizance  and  gives  a  new  bail  bond,  his 
former  sureties  are  no  longer  liable.*^  And  so  the  sureties  before 
forfeiture  are  released  from  liability  by  a  second  arrest  and  a 
.uew  bond  given  on  the  same  indictment.^®  And  they  cannot  there- 
after be  held,  although  the  second  bond  is  invalid  and  is  set  aside.^^ 
But  where  the  principal  escapes  after  forfeiture  and  is  arrested 
and  gives  a  new  bond,  this  does  not  release  the  former  securities.^^ 

§  426.  Arresting  Principal  on  Different  Charge. — When  the 
principal  is  arrested  on  a  different  charge  and  held  in  custody, 
which  makes  it  impossible  for  the  first  sureties  to  produce  him, 
this  operates  to  discharge  them.'*®    But  the  mere  temporary  deten- 

40.  Commonwealth  v.  Brand,  1  Commonwealth  v.  Oveerby,  80  Ky. 
Bush   (Ky.)   59.  208;    Commonwealth   v.   Webster,   1 

41.  People     V.     McReynolds,     102    Bush  (Ky.)  616. 

C  1.  308,  36  Pac.  590;  Wilson  v.  Peo-       4o.  Schneider    v.    Commonwealth, 

pie,    10    111.    App.    357;    Wheeler    v.  3  Met.  (Ky.)   409. 
State,  39  Kan.  163,  17  Pac.  856;  Peo-       46.  Peacock  v.  State,  44  Tex.  11. 
pie  V.  Stager,  10  Wend.  (N.  Y.)  431.       47.  Peacock  v.  State,  44  Tex.  11. 

42.  Commonwealth  v.  Bronson,  14  48.  State  v.  Martin,  50  La.  Ann. 
Mon.  (Ky.)  361;  Medlin  v.  Common-  1157,  24  So.  590;  Reed  v.  Police 
wealth,  11  Bush   (Ky.)   605.  Court  of  Lowell,  172  Mass.  427,  53 

43.  Ingram   v.   state,   27   Ala.   17;  N.  E.  633. 

Chapell  V.  State,  30  Tex.  613.  49.  Michigan.—  People  v.  Robb,  98 

44.  Belding  v.  State,  25  Ark.  315;    Mich.  397,  57  N.  W.  257. 


§    427  .SUEETYSHIP  AND  GUARANTY.  438 

tion^  as  taking  time  to  give  a  bond  on  another  charge  will  not 
release  them.^'^  Thus,  if  he  be  arrested  on  charge  and  fined,  stop- 
ping to  pay  the  penalty  is  not  a  sufficient  detention  to  release  the 
bail.°^  The  sureties  are  not  discharged  if  he  escapes  from  the  sec- 
ond arrest,  for  he  is  then  not  detained  by  the  law,  but  can  be 
arrested  and  delivered  to  the  court.  ^^ 

The  liability  of  the  sureties  is  not  affected  by  the  arrest  and 
detention  of  their  principal  in  another  county,  because  they  can 
secure  him  on  a  habeas  corpus  and  deliver  him  to  the  proper  of- 
ficer,^ unless  he  has  been  removed  from  the  county  by  order  of 
the  provost  marshal ;  this  action  of  a  Federal  officer  releases  them.^* 
And  the  same  result  will  follow  if  arrested  by  miitary  authority 
and  detained  as  a  soldier.^^  And  so  where  the  principal  is  ar- 
rested, tried,  convicted  and  imprisoned,  rendering  it  impossible 
to  produce  him,  the  sureties  are  released.^'^ 

§  427.  Sureties  are  Released  by  a  Change  of  Their  Obliga- 
tions.— The  rights  and  liabilities  of  bail  are  in  many  respects  dif- 
ferent from  those  of  sureties  on  ordinary  civil  bonds,  yet  their 
position  is  similar  in  respect  to  the  limitation  of  their  liability 
to  the  precise  terms  of  the  contract  and  the  effect  upon  such  lia- 
bility by  any  change  in  these  terms  without  their  consent.  So 
if  the  State  makes  any  contract  with  the-  principal,  either  bene- 
ficial or  detrimental  to  the  sureties,  without  their  consent,  it  oper- 
ates to  release  them.     Thus,  where  the  State  allows  him  to  be 

Xew  York. — People  v.  Bartlett,  3  Arkansas. — Havis  y.  State,  62  Ark. 

Hill   (N.  Y.)   570.  500,  37  S.  W.  957. 

Xorth  Dakota.— State  v.  Funk,  20  Illinois.— Mix  v.  People,  26  111.  32; 

N.  D.  145,  127  N.  W.  722.  Brown  y.  People,  26  111.  28. 

Vermont.— State  v.  Spear,   54  Vt.  Iowa.— State  v.  Merrihew,  47  Iowa 

503.  112. 

Virginia.- Caldwell    v.     Common-  Texas.— Wheeler  v.  State,  38  Tex. 

wealth,  14  Gratt.   (Va.)   698.  173. 

50.  West  V.  Colquitt,  71  Ga.  559;  But,  see  State  v.  Funk,  20  N.  D. 
Hartley  v.  Colquitt,  72  Ga.  351.  145,  127  N.  W.  722. 

51.  People  y.  Robb,  98  Mich.  397,  54,  Commonwealth  v.  Webster,  1 
57  N.  W.  257.  Bush   (Ky.)   616. 

52.  Bishop  V.  State,  16  Ohio  St.  55.  Belding  v.  State,  25  Ark.  315. 
419;   Wheeler  y.  State,  38  Tex.  173.  56.  People  y.  Bartlett,  3  Hill    (N. 

5S.  Alabama. — Ingram  v.  State,  27  Y.)  570;  Caldwell  v.  Commonwealth, 
Ala.  17.  14  Gratt.   (Va.)   698. 


439  Bail.  §  428 

extradited,  his  sureties  are  set  free  from  liability."  And  where 
the  condition  of  the  recognizance  provides  for  the  appearance  of 
the  principal  at  the  next  regular  term  and  at  any  subsequent  term, 
an  agreement  between  him  and  the  State,  superseding  this  condi- 
tion without  the  sureties'  consent,  will  discharge  them.^^  But  the 
fact  that  the  indictment  found  against  the  principal  and  properly 
presented  in  open  court  at  one  term,  but  not  entered  upon  the 
docket  until  the  succeeding  term,  is  not  a  cause  for  discharging 
the  bail,  because  the  principal's  right  was  not  affected  in  any  way 
hj  the  non-entry  of  the  case  upon  the  docket  at  the  first  term.^^ 

§  428.  Exoneration  of  Bail  by  Act  of  God. — The  sureties  are 
exonerated  from  liability  where  the  performance  of  the  condi- 
tion is  rendered  impossible  by  the  act  of  G-.d.^^  Thus,  where  the 
principal  is  too  sick  to  appear  it  will  exonerate  the  sureties." 
But  it  is  held  on  the  contrary  that  the  principal  being  sick  in 
another  county  did  not  exonerate  them  from  producing  him 
in  court.^^  If  the  money  has  been  paid  by  the  surety  after  for- 
feiture, he  is  not  entitled  to  its  recovery  upon  the  death  of  the 
principal.*^  As  a  general  rule,  if  failure  of  the  principal  to  ap- 
pear is  caused  by  the  act  of  God,  he  will  be  excused.^'* 

57.  Reese  v.  United  States,  9  Wall.    Hill  370;  People  v.  Manning,  8  Cow. 
(U.  S.)   13,  19  L.  Ed.  541.    '  297. 

58.  United  States  v.  Backland,  32        Coke  Litt.  306a. 

Fed.  156.  61.  State  v.  Tubbs,  37  N.  Y.  586. 

See,   also.   State  v.   Babb,   39  Mo.  Compare  Piercy  v.  People,  10  111. 

App.  543;  Swank  V.  State,  3  Ohio  St.  App.     219;     State     v.     Edwards,     4 

433;    Keefhauer  v.   Lowe,  2   Pa.  St.  Humph.  (Tenn.)  226. 

241.  62.  Piercy  v.  People,  10  111.  App. 

Compare   State  v.   Haskitt,   Riley  219. 

(S.  C.)  97.  But,  see  Hargis  v.  Begley,  33  Ky. 

6».  State    V.    Spear,    54    Vt.    503;  Law.  Rep.  1020,  112  S.  W.  602,  where 

King  V.  Clark,  5  B.  &  A.  728.  the  principal  was  shot  while  in  an- 

60.  United     States.  —  Taylor     v.  other  state  on  a  visit. 

Taintor,  16  Wall.  366,  21  L.  Ed.  287.  63.  People   v.   Rich,   36   App.    Div. 

Alabama.— Pynes  v.  State,  45  Ala.  (N.  Y.)   60,  56  N.  Y.  Supp.  277. 

52.  64.  Alabama. — Payne  v.  State,  45 

Illinois. — Piercy  v.  People,  10  111.  Ala.  52. 

APP-  219.  Colorado.— Chase     v.     People,     2 

New  Jersey. — State  v.  Traphager,  Colo.  481. 

45  N.  J.  L.  134.  Connecticut. — Parker    v.    Bidwell, 

New  York.— People  v.  Bartlett,  3  3  Conn.  84. 


§§  429, 430  SuEETYsiiiP  and  Guaranty.  440 

§  429.  Exoneration  by  Act  of  Law. — The  sureties  are  also  re- 
lieved of  liability  by  act  of  law.  Thus,  if  the  principal  is  arrested 
in  the  State  where  the  obligation  is  given,  and  sent  out  of  the 
State  upon  extradition,  such  act  will  release  the  sureties.'^''  liut 
where  the  bail  permit  their  principal  to  go  into  another  State  of 
his  own  volition,  where  he  is  arrested  for  another  crime,  this  does 
not  operate  to  release  the  sureties,  because  they  had  the  friendly 
custody  of  the  principal,  and  it  was  their  neglect  that  allowed  his 
departure  from  the  State  where  the  obligation  was  executed;®^ 
and  even  if  he  is  imprisoned  in  the  other  State,  this  does  not  re- 
lease the  home  sureties.*"^ 

§  430.  Exoneration  by  Act  of  Obligee. — The  act  of  the 
obligee,  or  State,  may  also  discharge  the  surety.^^     Thus,  where 

Georgia. — State    v.    Cone,    32    Ga.  miss  the  indictment  and  release  the 

663.  hail,  they  are  still  liable.     All  per- 

lowa. — State  v.  Scott,  20  Iowa  63.  sons  are  charged  with  notice  of  the 

Kentucky. — Way     v.     Wright,     5  power   conferred   upon   such   attor- 

Metc.  380;  McClelland  v.  Chambers,  ney  by  the  laws  of  the  state   and 

1  Bibb  366.  the  limitations  upon  that  authority. 

^ew  Jersey.— State  v.  McNeal,  18  Husbands    v.     Commonwealth,     143 

N.  J.  L.  33.  Ky.   290,   136   S.   W.   632. 

New  York.— People  v.  Tubbs,  37  if  a  principal  goes  into  another 

N.  Y.  586.  state    of    his     own    volition     with 

Pennsylvania.- Scully  v.  Kirkpat-  knowledge    that    prior    indictments 

rick,  79  Pa.  St.  324.  are  pending  against  him  there,  his 

Tennessee. — State   v.    Edwards,   4  arrest,    trial    and    conviction    wh  le 

Humph.  226.  there  will   not  discharge  his  sure- 
Virginia.— Coldwell    V.    Common-  ties.     United   States   v.   Marrin    (U. 

wealth,  14  Gratt.  698.  S   D.  C),  170  Fed.  476,  citing  United 

65.  Taylor  v.  Taintor,  16  Wall,  states  v.  Van  Fossen,  28  Fed.  Cas. 
366,  21  L.  Ed.  287;  Cain  v.  State,  55  357,  nq.  16,607. 

Ala.  170;   State  v.  Allen,  2  Humph.  67.  United   States.— United   States 

258;      Devine     v.     State,     5     Sneed  y   van  Forsen,  1  Dill.  406. 

(Tenn.)  626;  State  v.  Adams,  3  Head  Iowa.— State  v.  Scott,  20  Iowa  63. 

(Tenn.)  260.  Massachusetts.  —  Hartington      v. 

66.  Taintor    v.    Taylor,    36    Conn.  Dennie,  13  Mass.  92. 

242;    Yarbrough   v.   Commonwealth,  Nebraska. — King  v.  State,  18  Neb. 

89  Ky.  151,  12  S.  W.  143;   Withrow  275,  25  N.  W.  519. 

V.  Commonwealth,  1  Bush  17;  State  Tennessee. — Devine    v.     State,     5 

V.  Horn,  70  Mo.  466.  Sneed  623. 

^Vhere  the  commonwealth's  attor-  68.  Taylor  v.  Taintor,  16  Wall.  (U. 

ney,  without  authority,  agrees  to  dis-  S.)  366,  369,  21  L.  Ed.  287;  Buffing- 


441 


Bail. 


431 


the  governor  of  the  State  recognizes  a  requisition  from  another 
State  and  delivers  the  principal,  who  is  taken  out  of  the  State, 
this  operates  to  release  the  bail.*^^  So  where  the  State  and  prin- 
cipal makes  a  separate  contract  unknown  to  the  sureties,  vary- 
ing their  liability,  it  releases  them.'"  So  where  the  State  enacts 
Liiat  all  prior  recognizances  shall  be  void,  and  directs  the  court 
in  Vvhich  they  are  pending  to  dismiss  them,  the  sureties  are  dis- 
ciiarged  ;'^  and  so  where  the  court  before  which  the  principal  is 
to  appear  is  abolished  without  qualifications.^^ 


§  431.  Exoneration  of  Sureties  in  General. — The  discharge 
of  the  principal  is  also  a  discharge  of  the  bail.^^  So  if  the  principal 
is  taken  from  the  custody  of  the  bail  by  the  military,  the  bail  are 
released.'*  But  if  he  voluntarily  enlists  this  does  not  discharge 
the  pi'incipal,  as  held  by  the  weight  of  authority,^"  though  there  are 
other  decisions  to  the  contrary.''' 

The  State  may  also  remit  the  penalty,  and  thereby  discharge  the 
sureties."     The  conviction  of  the  principal  operates  as  an  exon- 


ham  V.  Smith,  58  Ga.  341;  Steelman 
V.  Mattex,  38  N.  J.  L.  247;  State  v. 
Allen,  2  Humph.  (Tenn.)  258;  State 
V.  Adams,  3  Head  260. 

69.  Taylor  v.  Taintor,  16  Wall. 
(U.  S.)  366,  21  L.  Ed.  287. 

70.  Reese  v.  United  States,  9  Wall. 
(U.  S.)  13,  19  L.  Ed.  541;  United 
States  V.  Backland,  33  Fed.  156. 

71.  Doniphan  v.  State,  50  ]\Iiss.  54. 

72.  Taylor  v.  Taintor,  16  Wall.  (U. 
S.j    366,  369,  21   L.  Ed.  287. 

See,  also.  State  v.  Berry,  34  Ga. 
546. 

73.  Arkansas. — State  v.  Glenn,  40 
Ark.  332. 

Georgia, — Roberts  v.  Gordon,  86 
Ga.  386,  12  S.  E.  648. 

Indiana. — Lyons  v.  State,  1  Blackf. 
309. 

Kentucky. — Smith  v.  Common- 
wealth, 91  Ky.  588,  16  S.  W.  532. 


Louisiana. — State  v.  Wilson,  14 
La.  Ann.   450. 

Missouri.— State  r.  Cobb,  44  Mo. 
App.  375. 

JVew  York. — Wells  v.  McCoy,  4 
Cow.  410;  People  v.  Felton,  36  Barb. 
429. 

Pennsylvania. — Commonwealth  v. 
Real  Estate  Title  Ins.  &  T.  Co.,  22 
Pa.  Super.  Ct.  235. 

74.  Belding  v.  State,  25  Ark.  315. 

75.  Huggins  v.  People,  39  111.  241; 
Winninger  v.  State,  23  Ind.  228; 
State  V.  Scott,  20  Iowa  63;  Harting- 
ton  V.  Dennie,  13  Mass.  93. 

76.  Commonwealth  v.  Terry,  2 
Duv.  (Ky.)  383;  People  v.  Caskney, 
41  Barb.  (N.  Y.)  118. 

See  sec.  411. 

77.  Harbin  v.  State,  75  Iowa,  263, 
43  N.  W.  210. 

As  to  setting  aside  forfeiture,  see 
§  43,  herein. 


^  431 


Suretyship  and  Guaeanty. 


442 


eretur  of  the  bail  without  formal  entry  to  that  eflfect/^  unless  the 
bond  provides  that  the  principal  shall  abide  the  judgment  of  the 
•court.'^  If  the  principal  is  arrested  after  conviction,  the  bail  are 
discharged.*"  And  the  postponement  of  the  trial  without  the 
knowledge  or  consent  of  the  sureties  renders  the  recognizance 
void.*^  Quashing  the  indictment  or  entering  a  nolle  prosequi  does 
not  discharge  the  bail,  and  if  another  indictment  is  found,  they 
must  produce  the  principal,  when  the  recognizance  provides  that 
the  principal  shall  not  depart  the  court  without  leave. ^"  The  nolle 
of  a  criminal  proceeding  in  a  certain  form,  leaving  a  potentiality 
of  its  future  prosecution  in  a  different  method,  does  not  ipso  facto 
discharge  the  principal  or  sureties  from  the  obligation  of  the 
recognizance  and  bond  f^  that  is,  the  second  indictment  includes 
the  oifense  described  in  the  bail  bond  and  grows  out  of  the  same 
transaction.**  And  the  mere  failure  to  indict  does  not  discharge 
the  bail,*^  as  the  court  must  release  the  principal.*®    And  it  matters 


78.  Roberts  v.  Gordon,  86  Ga.  386, 
12  S.  E.  648. 

Appearance,   plea  of  guilty,   and 

pronouncing  of  sentence  will  dis- 
charge bail.  Phillips  v.  State  (Ark. 
1911),  140  S.  W.  734. 

79.  Campbel  v.  State,  18  Ind.  375; 
State  V.  Stewart,  74  Iowa  336,  37  N. 
W.  400. 

80.  Moorehead  v.  State,  38  Kan. 
489,  16  Pac.  957;  Jackson  v.  State, 
52  Kan.  249,  34  Pac.  744;  State  v. 
Wurmann,  124  Mo.  502,  28  S.  W.  2; 
Childers  v.  State,  25  Tex.  Cr.  App. 
€58. 

81.  Reese  v.  United  States,  9  Wall. 
(U.  S.)  13,  19  L.  Ed.  541;  State  v. 
Mackey,  55  Mo.  51. 

Compare  State  v.  Smith,  66  N.  C. 
620. 

See,  as  to  appearance  and  post- 
ponement of  day  or  term,  §  423 
herein. 

82.  State  v.  Brooks,  48  La.  Ann. 
855,  19  So.  739;  State  v.  Hancock,  54 
N.  J.  L.  393,  24   All.  726. 


An  abandonment  of  prosecution 
prevents  forfeiture.  Louisiana  So- 
ciety for  Prevention  of  Cruelty  to 
Children  v.  Moody,  111  La.  199,  35 
So.  516. 

83.  Silvers  v.  State  (Webster  v. 
State),  59  N.  J.  L.  428,  37  Atl.  133. 

84.  Arkansas. — Hortsell  v.  State, 
45  Ark.  59. 

Kentncky.  —  Commonwealth  v. 
Skiggs,  3  Bush  19. 

Louisiana. — State  v.  Brooks,  48 
La.  Ann.  855,  19  So.  739. 

South  Carolina. — State  v.  Haskett, 
3  Hill  95. 

Virginia.  —  Arche  v.  Common- 
wealth, 10  Graft.  627. 

Compare  State  v.  Mathis,  3  Ark. 
84;  State  v.  Langton,  6  La.  Ann. 
282;  People  v.  Felton,  36  Barb.  (N. 
Y.)    429. 

85.  Fitch  v.  State,  2  Nott  &  M.  (S. 
C.)  558. 

86.  Fleece  v.  State,  25  Ind.  384; 
Commonwealth  v.  Roberts,  4  Mete. 
(Ky.)    220;    State  t.   Doane,   30   La. 


443  Bail.  §  431 

not,  though  the  principal  is  indicted  for  an  offense  different  than 
the  one  for  whicii  he  gives  bail.*^ 

The  loss  of  the  indictment  has  no  effect  as  to  the  bond.**  But 
if  the  recognizance  is  taken  by  an  officer  who  had  no  authority  so 
to  do,  it  is  void.^^  And  if  the  bond  recites  no  crime  against  the 
law  it  is  void.^°  And  when  the  principal  is  required  to  give  bail 
in  separate  and  distinct  sums,  a  single  bond  covering  the  aggre- 
gate amount,  is  void.''^  And  so  if  the  office  of  the  justice  is  charged 
after  bail  is  given,  and  before  the  time  set  for  appearance,  and 
the  parties  without  any  knowledge  of  such  change  appear  at  the 
former  place,  the  bail  is  discharged.'^ 

Where  the  sureties  and  principal  are  liable  severally,  and  not 
jointly,  a  remission  of  the  penalty  after  forfeiture  does  not  release 
the  sureties.^^  A  bond  not  certified  and  filed  according  to  law, 
and  not  returned  until  the  officer  is  out  of  office  by  expiration  of 
his  term,  is  void.^*  For  a  bond  taken  in  criminal  cases  must  be 
according  to  law.^^  But  it  is  no  defense  that  the  bond  does  not 
properly  describe  the  offense  charged  against  the  principal  where 
the  latter  has  received  the  same  benefits  which  he  would  have, 
if  such  omission  did  not  exist.^^  It  being  declared  that  a  person 
cannot  resist  a  forfeiture  by  attacking  an  indictment  except  where 
it  is  void.^^  And  it  is  held  that  the  sureties  are  not  relieved  by 
the  fact  that  the  information  and  affidavit  do  not  charge  the  com- 
mission of  the  offense  in  the  county  in  which  it  was  actually  com- 
mitted as  the  jurisdiction  of  the  court  to  require  such  a  bond  de- 
Am.  1194;  Jones  v.  State,  11  Tex.  91.  United  States  v.  Goldstein,  1 
Cr.  App.  412.  Dill.  C.  C.  43;  State  v.  Buffum,  22  N. 

87.  Pack    V.    State,    23    Ark.    235;    H.  267. 

Commonwealth  v.  Clocum,  14  Gray  92.  Hammon  v.  State,  38  Ind.  32. 

395;  Commonwealth  v.  Butland,  119  93.  State  v.  Davidson,  20  Mo.  212. 

Mass.  317;    Duke  t.   State,   35   Tex.  94.  State  v.  Pratt,  148  Mo.  402,  15 

424.  S.  W.  113. 

88.  Price  v.  State,  42  Ark.  178;  95.  State  v.  Winninger,  81  Ind.  13; 
Crouch  V.  State,  25  Tex.  755.  Dickinson   v.    State,   20   Neb.   72,   29 

89.  State  v.  Winninger,  81  Ind.  N.  W.  184;  Powell  v.  State,  15  Ohio 
51;  Commonwealth  v.  Roberts,  1  579;  State  v.  Clarke,  15  Ohio  595; 
Duv.  (Ky.)   199.  Williams  v.  Shelby,  2  Oreg.  144. 

Compare   Pack   v.   State,   23   Ark.  96.  People  v.  Russell,  35  Misc.  R. 

235.  (N.  Y.)   765,  72  N.  Y.  Supp.  1. 

90.  Nicholson  v.  State,  2  Ga.  363;  97.  Williams  v.  Candler,  119  Ga. 
Foster  v.  State,  27  Tex.  236.  179,  45  S.  E.  989. 


§§  4;J2,  433  Suretyship  and  Guaranty.  44:4r 

pentls  on  tbo  allegations  of  the  information  and  where  they  prop- 
erly charge  the  commission  of  an  offense  as  within  the  court's 
jurisdiction,  the  power  to  require  a  recognizance  exists.^* 

And  in  an  action  on  the  undertaking  of  bail,  the  obligation  of 
the  sureties  is  not  affected  by  the  question  whether  the  prosecu- 
tion of  the  offense  is  barred  by  the  statute  of  limitations.^* 

§  432.  Subrogation  in  Criminal  Cases. — To  enable  the  bail 
to  escape  the  payment  of  their  recognizance  by  performau  . 
which  the  recognizance  binds  them  to  do,  the  State  will  lend  them 
its  aid  in  every  proper  way  by  process  and  without  process  to  seize 
the  person  of  the  principal  and  compel  his  appearance.  This  is 
the  kind  of  subrogation  which  exists  in  a  criminal  case ;  that  is, 
subrogation  to  the  means  of  enforcing  the  performance  of  the 
thing  which  the  recognizance  of  bail  is  intended  to  secure  the  per- 
formance of,  and  not  subrogation  to  the  peculiar  remedies  which 
the  State  may  have  for  collecting  the  penalty.  Subrogation  to  the 
State's  remedies  would  clearly  be  against  public  policy  by  sub- 
verting as  far  is  it  might  prove  effectual  the  very  object  and  pur- 
pose of  the  recognizance.^  And  the  statute  conferring  on  sure- 
ties on  bonds  to  the  United  States  who  are  forced  to  pay  the  ob- 
ligation, priority  over  other  creditors  does  not  apply  to  recogniz- 
ances in  criminal  proceedings,  and  does  not  authorize  an  action  in 
the  name  of  the  United  States.  Its  only  advantage  is  the  priority 
given  over  other  creditors  of  the  principal,  and  not  in  the  mode 
and  form  of  procedure.^ 

§  433.  Forfeiture  of  Bond. — Where  the  principal  makes  de- 
fault and  does  not  appear,  the  recognizance  becomes  ipso  fa' to 
forfeited,  and  the  liability  of  the  sureties  arises  and  becomes  ab- 
solute, and  a  subsequent  arrest  of  the  principal  does  not  work  an 
exoneration  of  the  sureties.^  And  the  arrest  of  the  principal  upon 
a  bench  warrant  and  his  discharge  upon  entering  into  another 

98.  State  V.  Osborn,  155  Ind.  385,  2.  United  States  v.  Preston,  4 
58  N.  E.  491.  Wash.   C.   C.   446;    United   States   v. 

99.  United  States  v.  Dunbar,  83  Ryder,  110  U.  S.  729,  4  Sup.  Ct.  196, 
Fed.  151.  28  L.  Ed.  308. 

1.  United  States  v.  Ryder,  110  U.  H.  People  v.  Bennett,  136  N.  Y. 
S.  729,  4  Sup.  Ct.  196,  28  L.  Ed.  30S.     482,  32  N.  E.  1044. 


445  Bail.  §  433 

recognizance  to  appear  and  answer  to  the  charge,  which  he  kept, 
IS  no  defense  to  an  action  on  the  first  recognizance.*  And  so  a 
subsequent  trial  and  conviction  of  the  principal  does  not  affect 
rhe  forfeiture.^  Because  a  surety  cannot,  after  the  recognizance 
has  been  forfeited,  discharge  himself  by  surrendering  his  prin- 
cipal.** 

If  the  statute  prescribes  certain  formalities  as  a  prerequisite 
to  forfeiture  there  should  be  a  compliance  therewith  and  the  rec- 
ord should  show  that  there  has  been,'  though  it  is  held  that  mere 
clerical  omissions  such  as  a  failure  to  put  a  file  mark  on  a  recog- 
nizance,^ or  to  promptly  enter  the  forfeiture  will  not  affect  a  de- 
cree declaring  it.^  And  where  by  statute  proceedings  on  a  bond 
are  not  to  be  defeated  by  any  irregularity  or  defect  of  form  an 
order  of  forftiture  is  not  void  for  failure  to  state  the  amount  ;^'' 
nor  can  there  be  a  collateral  attack  on  an  order  of  forfeiture  upon 
the  ground  that  the  record  does  not  show  that  it  was  taken  at  the 
proper  time.^  Again  a  failure  of  the  record  to  show  jurisdiction 
over  the  accused  will  not  render  a  decree  of  forfeiture  invalid. ^^ 
And  where  by  statute  an  action  on  a  bond  is  not  barred  by  neglect 
to  note  a  default  on  the  record  a  forfeiture  may  be  proved  by 
parol  evidence.^^ 

The  court  has  no  power  to  forfeit  a  bond  where  the  principal  is 
ready  and  willing  to  perform  the  conditions  thereof.^* 


4.  People  V.  Anable,  7  Hill  (N.  Y.)  8.  Commonwealth    v.    Meeser,    19 
33.  Pa.  Super.  Ct.  1. 

5.  Walker   v.    Commonwealth,    79  9.  Lawrence     v.     Commonwealth, 
Ky.  292.  25  Ky.  Law  Rep.  455,  76  S.  W.  10. 

6.  People   V.   Bartlett,   3   Hill    (N.  Compare    State   v.    Hindman,    159 
Y.)   570;    State  v.  McGuire,  16  R.  I.  Ind.  586,  65  N.  E.  911. 

519,  17  Atl.  918;  State  v.  Warren,  17  10.  State    v.    Eyermann,    172    Mo. 

Tex.  283.  294,  72  S.  W.  539. 

Compare    Freeman    v.    State,    112  11.  State    v.    Hindman,    159    Ind. 

Ga.  648,  37  S.  E.  886.  586,   65   N.   E.   911. 

7.  Louisiana  Society  for   Preven-  12.  State    v.    Eyermann,    172    Mo. 
tion     of     Cruelty     to     Children     v.  294,  72  S.  W.  539. 

Moody,  111  La.  199,  35  So.  516.  13.  Hesselgrave  v.  State,  63  Neb. 

Scire  facias  must  be  issued  as  a  807,    89    N.   W.    295,    decided    under 

prerequisite    to    a    legal    judgment  Neb.  Code  Cr.  Proc.  §  388. 

against  a  surety.    Braxton  v.  Cand-  14.  Humphries  v.  State   (Tex.  Cr. 

ler,  112  Ga.  459,  37  S.  E.  710.  App.  1902),  69  S.  W.  527. 


§  4;j4 


SUKETYSHIP  AND  GUARANTY. 


446 


§  434.  Setting  Aside  Forfeiture. — The  forfeiture  may  be  set 
aside  under  some  conditions.  Thus,  where  the  principal  uses  due 
diligence  and  is  not  guilty  of  laches  and  appears  as  soon  as  pos- 
sible with  no  intent  to  evade  the  law,  the  court  will  generally 
grant  him  and  his  sureties  relief. ^^  Each  case,  however,  must  be 
decided  according  to  the  circumstances  surrounding  it.^^ 

The  power  to  remit  a  forfeiture  is  discretionary,"  though  an 
exercise  of  such  discretion  will  not  be  sustained  where  it  has  been 
abused.^^ 

It  is  wnthin  the  power  of  the  court,  incidental  to  its  jurisdic- 
tion in  criminal  cases,  to  grant  relief  to  bail  where  the  default 
was  caused  by  the  sickness  or  death  of  the  accused  before  for- 
feiture, and  where  the  death  of  the  principal  occurs  after  for- 
feiture when  the  bail  is  fixed.  It  is  in  every  case  an  appeal  to 
the  discretion  of  the  court,  which  will  be  exercised  when  justice 
to  the  bail  demands  it  and  public  justice  and  policy  do  not  pro- 


15.  Wray  v.  People,  70  111.  664. 

16.  Hauglesben  v.  People,  89  111. 
164;  People  v.  Flynn,  53  111.  App. 
493;  Riggen  v.  Commonwealth,  3 
Bush  (Ky.)  493;  Rawlings  v.  State, 
38  Neb.  590,  57  N.  W.  286;  Common- 
wealth V.  Oblender  (Appeal  of 
Kneezel,  135  Pa.  St.  536),  135  Pa. 
St.  530,  19  Atl.  1057. 

Time  of  making  application  for 
remission,  see  State  v.  Bordelon,  HI 
La.  105,  35  So.  476;  State  v.  Hayes, 
104  La.  461,  29  So.  22;  State  v.  Bon- 
gard,  89  Minn.  426,  94  N.  W.  1093; 
In  re  Sayles,  84  App.  Dlv.  (N.  Y.)  210, 
82  N.  Y.  Supp.  671,  rev'g  81  N.  Y. 
Supp.  258. 

17.  In  re  Sayles,  84  App.  Div.  (N. 
Y.)  210,  82  N.  Y.  Supp.  671,  rev'g 
81  N.  Y.  Supp.  258;  In  re  Leano,  60 
Misc.  R.  (N.  Y.)  520,  113  N.  Y.  Supp. 
1115. 

Discretion  is  judicial.  Where  a 
court  is  empowered  by  statute  to 
"  in  its  discretion  to  remit  a  whole 
or  a  part  of  the  sum  specified  in  the 
bail  bond,"  the  discretion  is  a  judi- 


cial and  not  an  arbitrary  one  Fort- 
ney  v.  Commonwealth,  140  Ky.  545, 
131  S.  W.  383. 

After  judgment  against  bail. 
Where  the  statute  provides  that  "  If 
before  judgment  is  entered  against 
the  bail,  the  defendant  be  sur- 
rendered or  arrested,  the  court  may 
at  its  discretion,  remit  the  whole 
or  a  part  of  the  sum  specified  in  the 
bail  bond,"  the  court  has  no  power 
to  set  aside  a  judgment  rendered 
on  a  recognizance  or  bail  bond 
after  the  day  upon  which  it  was 
rendered.  Logan  v.  Commonwealth, 
144  Ky.  494,  139  S.  W.  741. 

To  remit  only  a  jiart  is  not  an 
abuse  of  discretion.  Commonwealth 
V.  Cohen,  22  Pa.  Super.  Ct.  55. 

Prosecutor  cannot  appeal  from 
an  order  of  remission.  Common- 
wealth V.  Real  Estate  Title  Ins.  & 
Trust  Co.,  22  Pa.  Super.  Ct.  235. 

18.  In  re  Sayles,  84  App.  Div.  (N. 
Y.)  210,  82  N.  Y.  Supp.  671,  rev'g  40 
Misc.  R.   135,  81  N.  Y.   Supp.  258. 


447  Bail.  §  435- 

hibit  it.^®  But  sickness  of  the  surety  is  no  defense,  the  principal 
still  being  at  large.^**  Threats  against  the  principal's  life  is  a 
sufficient  excuse  for  his  non-appearance  where  the  officers  of  th& 
law  will  not  protect  him  on  being  so  requested.^^  Thus,  the  fact 
that  the  principal  has  forfeited  his  bond  because  he  could  not 
appear  without  danger  of  losing  his  life  by  a  mob,  will  not  ex- 
cuse the  bail  unless  the  proper  authorities  were  applied  to  and 
were  unable  or  unwilling  to  extend  to  the  accused  the  protection 
necessary  to  enable  him  to  appear.^^ 

In  order  to  receive  relief  the  principal  must  show  that  it  was  not 
his  own  fault  that  he  did  not  appear.^^  The  surety  also  must  not 
be  in  fault  in  conniving  at  or  consenting  to  the  deault,  in  order 
to  secure  relief.^*  In  some  jurisdictions,  relief  will  not  be  granted 
until  trial  of  the  principal  and  conviction  or  discharge  adjudged.^' 


§  435'  Voluntary  Appearance  or  Arrest  After  Forfeiture — 
Costs. — Generally  a  forfeiture  of  a  recognizance  will  be  vacated  on 
payment  of  costs  and  expenses,  where,  after  the  default,  the  prin- 
cipal voluntarily  appears  in  court,  in  case  sufficient  cause  is  shown 
for  his  failure  to  appear  according  to  the  obligation  of  his  recog- 


19.  Colorado. — Chase  v.  People,  2  20.  People  v.  Meehan,  14  Daly  (N". 

Colo.  481.  Y.)   333. 

Georgia.  —  Russell    v.    State,    45  21.  Fleenor  v.  State,  58  Ind.   166. 

Ga.  9.  22.  Weddington  v.  Commonwealth,. 

Jfew  Jersey.— State  v.  Traphagen,  79  Ky.  582. 

45  N.  J.  L.  134.  23.  United    States    v.    McGlashire, 

New  York.— People   v.   Tubbs,   37  66  Fed.  537;  People  v.  McFarland,  9 

N.  Y.  586;  People  v.  Manning,  8  Cow.  111.   App.   275;    Riggen   v.   Common- 

297.  wealth,  3  Bush  (  Ky.)  493. 

Texas.— Baker    v.    State,    21    Tex.  24.  People   v.    Smith,    2    Hilt.    (N. 

Cr.  App.  859.  Y.)   523. 

Where  bail  liaie  been  misled  by  25.  State   v.    Schexneider,   45   La. 

the  attorney  for  the  state  who  has  Ann.     1445,    14    So.    250;     State    v.. 

consented  and  allowed  the  principal  Hamill,    6    La.    Ann.    257;    State    v^ 

to  go  out  of  the  state  they  should  Saunders,  8  N.  J.  L.  177;   People  v. 

be    allowed    a    reasonable    time    to  Wissig,   7  Daly    (N.   Y.)    23;    People 

produce    him.      Husbands    v.    Com-  v.  Fields,  6  Daly  (N,  Y.)  410;  People 

monwealth,  143  Ky.  290,  136  S.  W.  v.  Coman,  5  Daly   (N.  Y.)    527;   Rex 

662.  V.  Spencer,  1  Wils.  315;  Rex.  v.  Fin- 
more,  8  T.  R.  403. 


§  430 


SUKETYSHIP  AND  GUARANTY. 


448 


nizance.^^  The  costs  must  be  paid  before  relief  will  be  granted  in 
any  case,"^  and  also  the  other  necessary  expense.^^  And  a  mere 
agreement  to  pay  the  costs  is  not  sufficient;  they  must  actually 
be  paid.^^ 


§  436.  Effect  of  Remission  of  Forfeiture. — After  remission  of 
the  forfeiture,  then  the  principal  stands  in  a  position  as  if  no 
forfeiture  had  occurred,  and  it  is  then  his  duty  to  comply  with 
the  condition  of  the  recognizance  and  appear  in  court  until  the 
charge  against  him  is  legally  disposed  of.^*^ 

And  an  appeal  does  not  lie  from  the  order  and  judgment  of  the 
court  in  recognizance  to  remit  the  forfeiture,^^  except  in  case  of 
abuse  of  discretion. ^^ 

The  power  to  remit  may  be  exercised  for  the  benefit  of  the 
sureties  as  well  as  for  the  principal.^^ 

If  after  forfeiture  the  accused  is  surrendered  by  the  bail,  and 
is  convicted  and  punished,  the  forfeiture  will  be  remitted  as  to 
the  sureties  f*  and  if  the  accused  appears  and  stands  trial  and 
is  acquitted,  this  is  sufficient  ground  for  remission  of  the  forfei- 
ture,^ or  if  he  is  convicted.^^ 


26.  Rawlings  v.  State,  38  Neb.  590, 
.57  N.  W.  286. 

27.  Ward  v.  Colquitt,  62  Ga.  267. 

28.  People  v.  Brady,  19  Civ.  Pro. 
Rep.   (N.  Y.)    372. 

24.  People  v.  Smith,  43  111.  App. 
217. 

30.  State  v.  Cornig,  42  La.  Ann. 
416,  7  So.  698. 

31.  People  V.  Bennett,  136  N.  Y. 
482,  32  N.  E.  1044;  Bross  v.  Com- 
monwealth, 71  Pa.  St.  262;  Common- 
wealth V.  Oblender  (Appeal  of 
Kneezel),  135  Pa.  St.  536,  19  Atl. 
1057. 

32.  Illinois.— People  v.  Hobbs,  46 
111.  App.  206. 

Iowa. — State  v.  Kraner,  50  Iowa 
582. 

Kentucky.  —  Commonwealth  v. 
Coleman,  2  Mete.  382. 


Louisiana. — State  v.  Denny,  10  La. 

Ann.   335. 

New  York. — In  re  Sayles,  84  App. 
Div.  210,  82  N.  Y.  Supp.  671,  rev'g 
40  Misc.  R.  135,  81  N.  Y.  Supp.  258. 

Texas. — Barton  v.  State,  24  Tex. 
250. 

33.  State  v.  Rollins,  52  Ind.  108; 
Harbin  v.  State,  78  Iowa  263,  43  N. 
W.  210. 

34.  People  v.  Johnson,  4  N.  Y. 
Supp.  705. 

35.  State  v.  Saunders,  8  N.  J.  L. 
177;  People  v.  Higgins,  7  N.  Y.  Supp. 
658. 

36.  People  v.  Cooney,  9  N.  Y.  Supp. 
285;  People  v.  Madden,  8  N.  Y.  Supp. 
531. 

Compare  State  v.  Warrick,  3  Ind. 
App.  508. 


449 


Bail. 


§  437 


§  437.  Taking  Money  in  Lieu  of  Bail. — Where  no  authority  is 
given  by  statute  to  take  money  in  place  of  bail,  a  deposit  of  money 
so  taken  is  illegal."  In  some  jurisdictions  the  statute  provides 
for  taking  money  in  place  of  bail.^^  In  these  jurisdictions  where 
money  may  be  deposited  as  bail,  and  the  forfeiture  is  set  aside, 
the  money  may  be  recovered  back.^^  But  where  no  authority  is 
given  to  take  such  money,  after  it  is  deposited  with  the  sheriff, 
it  cannot  be  recovered  back/"  though  it  should  be  paid  into  the 
county  treasury  just  as  if  collected  upon  a  recognizance/^ 


37.  Butler  v.  Foster,  14  Ala.  323; 
Smart  v.  Cason,  50  111.  195;  Reinhard 
V.  Columbus,  49  Ohio  St.  257,  31  N. 
E.  35. 

38.  Morrow  v.  State,  6  Kan.  222; 
Dean  v.  Commonwealth,  1  Bush 
(Ky.)  20;  People  v.  Laidlow,  102  N. 
Y.  588,  7  N.  E.  910;  Wash  v.  State, 
3  Cold.   (Tenn.)   91. 

Money  presumed  to  be  defend- 
ant's.- Under  the  statutes  in  Okla- 
homa, which  permit  a  deposit,  in 
lieu  of  bail  and  which  make  no  pro- 
vision that  the  money  be  returned 
to  one  other  than  the  defendant.  It 
is  decided  that  the  money  so  de- 
posited should,  for  the  purpose  of 
the  deposit,  be  conclusively  pre- 
sumed the  money  of  the  defendant 
and  treated  accordingly.  Whiteaker 
v.  State,  31  Okla.  65,  119  Pac.  1003. 
Compare  Doty  v.  Braska,  138  Iowa 
396,  116  N.  W.  141. 

Where  money  is  paid  by  a  judg- 
ment debtor  to  and  accepted  by  a 
sheriff,  pursuant  to  a  stipulation  be- 
tween the  parties  to  a  judgment,  he 
is  a  party  in  fact  to  such  stipulation 
although  he  does  not  sign  it  and  is 
not  justified  in  applying  or  paying 
over  the  money  otherwise  than  In 
accordance  with  the  terms  of  the 
agreement.  Donahue  v.  Gunter,  142 
Wis.  447,  125  N.  W.  950. 

Money  deposited  as  bail  may  be 
applied  in  satisfaction  of  a  fine  un- 
29 


der  §  1297  of  the  California  Penal 
Code.  La  Porte  v.  Williams,  17  Cal. 
App.  428,  120  Pac.  55. 

Entry  of  forfeiture.  Where  money 
is  deposited  in  lieu  of  bail  and  the 
defendant  fails  to  appear  it  is  only 
necessary  in  order  to  declare  a  for- 
feiture that  the  court  should  direct 
the  fact  of  the  deposit,  and  of  the 
defendant's  neglect  to  appear,  to  be 
entered  of  record.  The  forfeiture 
then  follows  as  a  matter  of  course. 
Whiteaker  v.  State,  31  Okla.  65,  119 
Pac.  1003. 

39.  Arquette  v.  Supervisors  ot 
Marshall  County,  75  Iowa  191,  39  N. 
W.  264. 

Jurisdiction  of  the  person  to 
wliom  bail  money  is  paid  oyer, 
whether  such  payment  is  rightful  or 
wrongful,  is  essential  before  an  or- 
der can  be  made  directing  such  per- 
son to  return  the  money.  Edward 
V.  County  of  Hennepin,  116  Minn. 
101,  133  N.  W.  469. 

One  entitled  to  a  return  of  at  least 
a  portion  of  the  sum  deposited  by 
him  should  not  be  denied  recovery 
because  in  his  complaint  he  de- 
mands the  entire  sum.  Donahue  v. 
Gunter,  142  Wis.  447,  125  N.  W.  950. 

40.  Smart  v.  Cason,  50  111.  195. 
Cooper  V.  Rivers,  95  Miss.  423,  48 

So.  1024. 

41.  Rock  Island  v.  Mercer  County, 
24  HI.  35. 


I  438  Suretyship  and  Guaeanty.  450 


CHAPTER  XVI. 

SURETY    COMPANIES. 

Section  438.  Statutes  Affecting  Surety  Companiea. 

439.  Statute  Cannot  Fix  Rate  Company  May  Charge. 

440.  Penalty  Statute  —  Surety  Company  —  Construction  of. 

441.  Foreign  Surety  Companies. 

442.  Rule  that  Surety  a  Favorite  of  the  Law  not  Applicable  to 

Surety  Companies. 

443.  Surety    Company    Contract   Treated    Similar   to   Insurance 

Contract. 

444.  Surety  Contracts  Treated  as  Insurance  Contracts  —  Appli- 

cation of  Principle  to  Agents  —  Premiums. 

445.  Surety  Bond  and  Application  Construed  Together. 

446.  Surety  Company  and  Agent  —  Apparent  Scope  of  Authority. 

447.  Surety  Company  and  Agent  —  Written  Authority. 

448.  Notice  to  Company  of  Default  —  Provision  as  to  Construed 

—  Waiver. 

449.  Where  Company  Succeed  to  Assets  of  Another  Company. 

Sec.  438.  Statutes  Affecting  Surety  Companies. — There  have 
been  numerous  statutes  passed  in  the  various  states  which  affect 
the  rights  and  liabilities  of  surety  companies,  as,  for  instance,  pro- 
viding the  manner  in  which  such  a  company  shall  justify,^  as  to 
binding  the  surety  by  act  of  the  agent,^  the  right  to  demand  in- 

1.  The  method  by  which  a  surety  knowledge  that  a  person  is  acting  as 
company  shall  justify,  as  provided  in  agent  of  a  surety  company,  this  is 
§  4,  ch.  720,  Laws  1893,  as  amended  sufficient  to  indicate  to  him  that  the 
by  ch.  178,  Laws  1895,  held  not  ex-  authority  of  such  person  to  so  act 
elusive.  Haines  v.  Hein,  67  App.  is  in  writing  and  imposes  upon  him 
Div.  (N.  Y.)  389,  73  N.  Y.  Supp.  293.  the  duty  of  inquiring  into  the  powers 

2.  Where  it  is  provided  by  statute  conferred.  United  States  Fidelity  & 
that  no  person  shall  be  bound  as  the  Guaranty  Co.  v.  McGinnis'  Adm'r 
surety  of  another  by  the  act  of  an  (Ky.  C.  A.  1912),  145  S.  W.  1112. 
agent,  unless  the  authority  of  the  A  statute  providing  that  any  per- 
agent  is  in  writing,  signed  by  the  son  who  solicits  business  on  behalf 
principal,  the  act  is  construed  as  ap-  of  a  surety  company  "  shall  be  held 
plying  both  to  private  and  official  to  be  the  agent  of  such  corporation, 
obligations.  First  National  Bank  of  so  far  as  relates  to  all  the  liabilities 
Covington  v.  Gaines,  87  Ky.  597,  9  S.  and  penalties  prescribed  by  this 
W.  396,  10  Ky.  Law  Rep.  451.  act,"  does  not  make  him  liable  for 

Under  such  an  act,  where  one  has   any  acts  which  if  done  by  the  com- 


451                                Surety  Companies.  §  440 

demnity  from  the  principal/  to  petition  for  release  from  liability/ 

and  whieli  otherwise  affect  their  rights.^ 

Under  a  code  provision  that  the  production  of  the  certificate 
of  authority  of  a  surety  company  shall  be  sufficient  authority  for 
the  approval  of  any  bond  or  undertaking,  it  will  be  presumed  in 

pany  would  not  have  subjected  it  to  was  no  intention  to  give  such  a 
any  penalty  or  liability.  Davis  v.  surety  the  rights  to  apply  for  re- 
Pullman  Co.,  34  Tex.  Civ.  App.  621,  lief.  The  Court,  however,  said:  "As 
79  S.  W.  635.  they    are   expressly    named    in    one 

3.  A  surety  company  is  not  en-  part  and  named  generally  in  an- 
titled,  under  the  Kentucky  statutes,  other,  with  no  exception  or  qualifi- 
to  demand  indemnity  for  liability  cation,  there  is  no  adequate  reason 
from  its  principal  unless  it  is  so  to  believe  that  the  legislature  in- 
stipulated  in  the  contract  of  surety-  tended  to  exclude  them  from  any 
ship  and  it  cannot  obtain  a  release  part.  There  was  no  necessity  for 
after  the  expiration  of  the  term  of  repeating  the  words  '  fidelity  or 
the  officer  for  whom  it  became  surety  companies '  in  order  to  make 
surety.  United  States  Fidelity  &  the  section,  as  an  entirety,  apply  to 
Guaranty  Co.  v.  Paxton,  142  Ky.  361,  them,  for  they  had  already  been 
134  S.  W.  481,  construing  Ky.  Stats.,  named  and  were  necessarily  in- 
§§  723,  4659,  4663,  4664.  eluded,    unless    expressly    excepted. 

4.  Under  a  provision  of  the  Code  As  the  legislature  did  not  make  any 
of  Civil  Procedure  in  New  York,  exception,  we  cannot,  for  there  is  no 
sureties  upon  official  bonds  are  un-  basis  for  an  exception  by  implica- 
der  certain  circumstances  permitted  tion.  The  section  refers  to  only 
to  petition  for  release  from  liability,  surety  or  sureties,  and  the  appellant 

In  construing  this  provision  (§  812)  is  a  surety.    Having  contracted  as  a 

it  is  decided  that  fidelity  and  surety  surety  in  the  manner  authorized  by 

companies    are   not    excepted    from  the  Code,  it  can  avail  itself  of  such 

such  provision  and  can  avail  them-  remedies  as  the  Code  provides   for 

selves  in  proper  cases  of  such  reme-  sureties  generally."     Per  Vann,  J. 

dies  as  the  Code  provides  for  sure-  5.  Kevoking   license    of   company 

ties  generally.     Matter  of  Thurber,  for  non-payment  of  judgment.    San- 

162  N.  Y.  244,  56  N.  E.  631,  reversing  doval    v.    United    States    Fidelity    & 

43  App.  Div.  528,  60  N.  Y.  Supp.  198.  Guaranty  Co.,  12  Ariz.  348,  100  Pac. 

It  was  contended  in  this  case  that  816. 

while  the  general   words  "  surety  "  Assignment  of  claim  to  company. 

Or  "  sureties  "  were  broad  enough  to  A  surety  company  may  take  an  as- 

embrace  surety  companies,  yet  that  signment  from  an  administratrix  for 

as  the  legislature  when  referring  to  whom    it   has   become   surety   of   a 

such  a  company  elsewhere  in  the  sec-  claim  against  next  of  kin  for  over- 

tion,  or  the  one  preceding,  named  it  payments  by  her  to  them.    Lawyers 

In  terms,  and  did  not  so  name  it  in  Surety  Co.  v.  Reinach,  25  Misc.  R. 

the  provisions  authorizing  the  court  (N.  Y.)   150,  54  N.  Y.  Supp.  205,  af- 

to  relieve  a  surety  from  further  lia-  firming   23   Misc.   R.   242,   51   N.   Y. 

bility,   it   was   presumed  that  there  Supp,  162. 


§§  439, 4-iO  Suretyship  and  Guaranty.  452 

the  absence  of  an  affirmative  showing  to  the  contrary  that  the  cer- 
tificate of  authority  was  produced  before  the  clerk  who  approved 
an  undertaking  entered  into  by  a  surety  company.  It  is  not 
necessary  for  the  clerk's  certificate  of  approval  to  show  that  the 
corporation  is  authorized  to  execute  the  undertaking,  nor  is  it 
necessary  that  such  certificate  of  authority  be  annexed  to,  or 
made  a  part  of  the  undertaking  or  of  the  clerk's  certificate.^ 

It  is  not  necessary  to  state  in  a  bond  executed  by  a  foreign  com- 
pany, under  a  statute  permitting  a  surety  company  to  act  as  surety, 
that  such  company  was  authorized  to  do  business  in  the  State, 
and  if  a  party  wishes  to  attack  the  sufficiency  of  a  surety  on  such 
a  groimd,  the  burden  is  upon  him  to  prove  lack  of  authority.^ 

§  439.     Statute  Cannot  Fix  Rate  Company  May  Charge. — The 

business  of  companies  engaged  in  furnishing  surety  bonds  is  not 
one  devoted  to  a  public  use,  or  affected  by  a  public  interest  and 
is  in  no  way  a  monopoly.  It  is  not  therefore  one  which  the  State 
may,  in  the  exercise  of  its  police  power,  regulate  by  fixing  the 
rates  to  be  charged  for  assuming  the  obligation  of  a  surety  and 
a  statute  which  prescribes  such  rates  is  unconstitutional  as  a  vio- 
lation of  the  fourteenth  amendment  to  the  Constitution  of  the 
United  States  providing  that  no  State  shall  ''  deprive  any  per- 
son of  life,  liberty  or  property  without  due  process  of  law."^ 

§  440.     Penalty   Statute — Surety   Company — Construction  of. 

— In  the  application  of  the  principle  that  where  statutes  are  penal 
in  their  nature  it  is  essential,  in  order  to  recover  the  penalty  pro- 

Tlie  term  "  surety  companies  "  in  955,  Political  Code,  is  authorized  to 

Cal    Stats.,   1903,   p.   476,   providing  become  the  sole  surety  on  any  un- 

"  for   the  payment  by  the   State  or  dertaking  or  bond  required  by  any 

counties,    or    cities,    or    cities    and  law  of  that  State.     San  Luis  Obispo 

counties,  of  the  premium  or  charge  County  v.  Murphy  (Cal.  S.  C.  1912), 

on    official    bonds    when    given    by  123  Pac.  808. 

-surety  companies,"  includes  any  cor-  6.  Germantown  Trust  Co.  v.  Whit- 

poration  organized  for  the  purpose  ney,  19  S.  D.  108,  102  N.  W.  304. 

of  carrying  on  the  business  of  be-  7.  Clopton   v.   Gk)odbar    (Tex.   Civ. 

coming  a  surety  on  bonds  and  un-  App.  1900),  55  S.  W.  972. 

dertakings,  which,  by  sections  1056  8.  American  Surety  Co.  v.  Shallen- 

and  1057  of  the  Code  of  Civil  Proce-  berger   (U.  S.  C.  C.  1910),  183  Fed. 

dure   and   subdivision    4   of   section  636,  holding  Nebraska  Act  April  1, 

1909  (Laws  1909,  c.  27)  void. 


453  Surety  Companies.  §  441 

vided  for,  that  the  case  must  come  within  the  very  terms  of  the 
statute,  it  is  held  that  where  a  penalty  is  denounced  against  cor- 
porations engaged  in  the  business  of  becoming  surety  who  cancel 
their  obligation  and  refuse  upon  request  to  give  a  written  state- 
ment of  the  facts  upon  which  their  action  is  based  the  act  has  no  ap- 
plication to  individuals  or  corporations  engaged  in  other  business 
than  becoming  surety  even  though  such  person  or  other  corporation 
may  be  the  agent  of  a  surety  or  guaranty  company.^ 

Under  a  statute  imposing  a  penalty  upon  any  person,  associa- 
tion of  persons,  or  corporations  who  shall  accept  as  surety  any 
corporation  which  has  not  complied  with  the  laws  of  the  State  it 
is  decided  in  Texas  that  such  penalty  can  only  be  recovered  by  a 
suit  in  the  name  of  the  State  in  a  court  of  competent  jurisdic- 
tion." 

§  441.  Foreign  Surety  Companies. — In  a  number  of  the  States 
statutes  have  been  passed  expresssly  relating  to  the  subject  of 
foreign  surety  companies  and  permitting  them  to  do  business 
within  the  State  upon  compliance  with  certain  prescribed  condi- 
tions and  regulations.^^    Where  surety  companies  are  governed  by 

9.  Davis  V.  Pullman  Co.,  34  Tex.  which  overcome  that  presumption, 
Civ.  App.  621,  79  S.  W.  635.  be  accepted  as  a  surety  upon  bonds 

10.  Davis  V.  Pullman  Co.,  34  Tex.  given  to  discharge  a  lien.  Matter  of 
Civ.  App.  621,  79  S.  W.  635.  Keogh,  22  Misc.  H.  (N.  Y.)  747,  50  N. 

11.  See     statutes     of     particular    Y.  Supp.  998,  28  Civ.  Proc.  R.  340. 
State.  Proof  of  the  solvency  of  a  foreign 

Appointment  of  agent  within  State  company  is  unnecessary  where  the 

and  sufficiency  of  service  of  process,  evidence  shows  that  it  was  duly  au- 

see  Turner  v.  Franklin,  10  Ariz.  188,  thcrized  to  do  business  in  the  State 

85  Pac.  1070.  and   it  is   provided   by   statute   that 

Presumption  of  solvency  of  foreign  where  foreign  companies  have  corn- 
corporation.  A  foreign  corporation,  plied  with  the  law  permitting  them 
duly  authorized  to  become  svirety  to  do  business  in  the  State  the  comp- 
upon  bonds,  which  has  submitted  to  troller's  certificate  of  such  fact  shall 
the  examination  by  statute  (N.  Y.  be  evidence  of  the  solvency  of  such 
Laws  1893,  c.  720,  as  amended  by  company.  Romine  v.  Howard  (Tex. 
Laws  1895,  c.  178),  which  has  been  Civ.  App.  1906),  93  S.  W.  690,  decided 
found  solvent,  and  i;;.  shown  to  be  so  under  article  735,  Sayles  Rev.  Civ. 
by  a  subsequent  statement  filed  by  St.,  1897. 

it  with  a  county  clerk,  will  be  pre-       Guardians'  bonds  included  in  those 

sumed  to  continue  solvent  and  must,  which  foreign  companies  might  exe- 

in    the    absence    of    proof    of    facts  cute  by  Texas  Act  of  June  10,  1897. 


§    442  SUKETYSIIIP  AND  GUARANTY.  454 

special  regulations  the  general  law  pertaining  to  foreign  corpora- 
tions is  not  applicable  to  them.^^ 

Of  a  statute  permitting  foreign  surety  companies  upon  compli- 
ance with  certain  conditions  to  do  business  within  a  State  it  is 
said  that  such  legislation  encourages  the  substitution  of  corporate 
for  individual  bonds  in  all  cases  where  suretyship  is  required, 
that  it  seeks  to  supply  a  public  need ;  to  remedy  a  public  evil  and 
should  receive  as  liberal  a  construction  as  can  reasonably  be  given 
to  effectuate  its  beneficial  purpose. ^^ 

A  foreign  corporation  engaged  in  the  surety  business  will  not 
be  permitted,  however,  to  escape  liability  upon  contracts  into 
which  it  has  entered  by  a  failure  to  comply  with  provisions  of  the 
statutes  which  authorize  it  to  do  business/^ 

§  442.  Rule  that  Surety  a  Favorite  of  the  Law  Not  Applicable 
to  Surety  Companies. — A  surety  company  which  engages  in  the 
business  for  a  consideration  is  not  in  the  position  of  a  surety  for 
acconmiodation.^^  Such  a  company  is  held  to  a  stricter  liability 
than  the  ordinary  surety/^  and  the  rule  that  sureties  are  favorites 
of  the  law  is  not  applicable  to  it.^'^ 

Less,  Guardian,  v.  Ohio,  92  Tex.  651,  was  estopped  "  in  any  proceeding  to 

51  S.  W.  502,  reversing  49  S.  W.  635.  enforce  the  liability  which  it  shall 

12.  Barricklow  v.  Stewart,  31  Ind.  have  assurbed  to  incur,  to  deny  its 
App.  446,  68  N.  E.  316.  corporate  power  to  execute  or  guar- 

The  Michigan  statutes  as  to  for-  anty  such  instrument,  or  assume 
eign  corporations  doing  business  in  such  liability."  See  Ranney-Alton 
State  held  not  to  apply  to  foreign  Mercantile  Co.  v.  Mineral  Belt  Con- 
corporations  such  as  surety  com-  struction  Co.,  2  Ind.  Terr.  134,  48  S. 
panies   licensed   to   do  business   by  W.  1028. 

insurance    commissioner.     Wells   v.  15*  City  of  New  Haven  v.  Eastern 

United  States  Fedelity  &  Guaranty  Pav.  Brick  Co.,  78  Conn.  689,  63  Atl. 

Co.,  160  Mich.  213,  125  N.  W.  57.  517;  United  States  Fidelity  &  Guar- 

13.  Lovejoy  v.  Isbell,  70  Conn.  557,  anty  Co.  v.  Parker  (Wyo.  1912),  121 
652,  40  Atl.  531.  Pac.  531. 

14.  Barricklow  v.  Stewart,  Execu-  16.  Brandrup  v.  Empire  State 
tor,  31  Ind.  App.  446,  68  N.  E.  316.  Surety  Co.,  Ill  Minn.  376,  127  N.  W. 

Estoppel     of     foreign     company.  424. 

Under  the  Act  of  Congress  approved  17.  Hull  v.  Massachusetts  Bonding 

August    13,    1894,    2    Supp.   Rev.   St.  &  Ins.  Co.  (Kan.  1912),  120  Pac.  544; 

U.  S.  1892-1896,  p.  237,  a  surety  com-  Young  v.  American  Bonding  Co.,  228 

pany  executing  a  bond,  recognizance  Pa.  St.  373,  77  Atl.  623. 
or  other  undertaking  under  the  act. 


455  iSuEETY  Companies.  §  442 

In  a  case  in  Xew  York  the  rule  is  announced  that  "  The  or- 
dinary rule  of  construction  applicable  to  instruments  creating  the 
relation  of  principal  and  surety  does  not  apply  to  a  bond  executed 
upon  a  consideration  by  a  corporation  organized  to  make  such 
bonds  for  profit,  but  in  such  a  case  any  doubtful  language  should 
be  construed  most  strongly  against  the  surety  and  in  favor  of  the 
indemnity  which  the  insured  had  reasonable  grounds  to  expect.^* 

'The  distinction  between  the  construction  given  to  bonds  of 
voluntary  sureties  and  of  surety  companies  has  been  applied  in 
the  case  of  a  bond  to  secure  the  performance  of  a  building  contract 
and  which  recites  that  it  is  executed  by  the  contractor  as  principal 
and  by  another  as  surety,  it  being  declared  that  though  in  the 
former  case  the  bond  is  void  if  not  signed  by  the  principal  yet 
that  this  rule  has  no  application  in  the  case  of  a  surety  company 
which  has  collected  and  retained  the  premium  charged  for  the 
bond  and  has  treated  the  instrument  as  properly  executed  until 
a  loss  has  occurred.^^ 

And  in  this  same  case  it  is  declared  that  the  rule  that  where 
changes  made  without  the  consent  of  the  surety  affect  the  identity 
of  a  building  contract,  the  surety  will  be  discharged  notwithstand- 
ing that  such  changes  do  not  increase  or  diminish  the  risk  of  the 
surety,  should  obtain  only  in  cases  of  voluntary  suretyship  and 
not  in  cases  where  the  surety  is  engaged  in  the  business  of  surety- 
ship for  hire.^° 

§  443.  Surety  Company  Contract  Treated  Similar  to  Insur- 
ance Contract. — In  construing  contracts  of  surety  companies 
the  courts  have  been  inclined  to  apply  to  them  many  general  rules 
and  principles  which  control  in  the  case  of  insurance  contracts. 
This  is  due  to  the  many  points  of  similarity  in  the  conduct  of  the 
business  and  in  the  contract  itself  which  is  in  the  nature  of  a 
contract  of  indemnity,  is  ordinarily  one  which  is  drawn  up  by 
the  company,  and  contains  numerous  conditions  and  stipulations 
tending  to  relieve  the  company  from  liability  in  case  of  violation.^^ 

18.  Town  of  Whitestown  v.  Title  App.  347,  142  S.  W.  358,  citing  Mar- 
Guaranty  &  Surety  Co.,  72  Misc.  R.  tin  v.  Whites,  128  Mo.  App.  123,  106 
(N.  Y.)  498,  131  N.  Y.  Supp.  390.  S.  W.  610. 

19.  Rule  V.  Anderson,  160  Mo.  App.  21.  Fnited  States.  —  American 
347,  142  S.  W.  358.  Surety  Co.  v.  Pauly,  170  U.  S.  133,  42 

20.  Rule    V.     Anderson,     160     Mo.  L.  Ed.  977,  18  Sup.  Ct.  552. 


§  442 


SUKETYSHIP  AND  GUARANTY. 


456 


In  a  recent  case  in  Pennsylvania  it  is  said  that  such  a 
contract  by  a  corporation  for  a  money  consideration  is  in  the 
nature  of  a  contract  of  insurance  and  that  the  rule  of  strictissimi 
juris  which  applies  to  an  individual  surety  is  relaxed  as  to  such 
a  corporation.^^  So  in  a  case  in  Iowa  it  is  said  that  the  business 
of  corporations  organized  for  the  purpose  of  profit  in  assuring 
the  performance  of  contracts  of  various  kinds  partakes  largely  of 
the  nature  of  insurance  and  is  carried  on  in  much  the  same  man- 
ner.^^  And  in  a  case  in  Missouri  it  is  said :  "  The  obligations  of 
a  surety  company,  while  not  strictly  insurance,  partake  more  or 
less  of  that  character.  They  clothe  their  obligations  with  all  sorts 
of  conditions,  for  the  violation  of  any  of  which  they  provide  for 
discharge  from  liability  alto,';;ether,  notwithstanding  they  have 
reaped  the  benefits  of  the  obligation.  They  stand  on  a  different 
footing  from  an  ordinary  or  straight  obligation,  uncoupled  with 
any  conditions  whatever  except  those  provided  for  in  the  letter 
of  the  contract  itself."^* 


Illinois. — Lesher  v.  United  States 
Fidelity  &  Guaranty  Co.,  239  111.  502, 
88  N.  E.  208;  People  v.  Rose,  174  111. 
310,  51  N.  E.  246,  44  L.  R.  A.  124. 

Iowa.  —  Van  Buren  County  v. 
American  Surety  Co.,  137  Iowa  490, 
115  N.  W.  24;  Getchell  &  Martin 
Lumber  &  Mfg.  Co.  v.  Peterson  & 
Sampson,  124  Iowa  599,  100  N.  W. 
550. 

Kentucky.  —  Champion  Ice  Mfg. 
&  Cold  Storage  Co.  v.  American 
Bonding  &  Trust  Co.,  115  Ky.  863,  75 
S.  W.  197,  25  Ky.  Law  Rep.  239,  103 
Am.  St.  Rep.  356. 

Minnesota. — Brandrup  v.  Empire 
State  Surety  Co.,  Ill  Minn.  376,  127 
N.  W.  424,  citing  Lakeside  Land  Co. 
V.  Empire  State  Surety  Co.,  105 
Minn.  213,  117  N.  W.  431. 

Missouri. — Rule  v.  Anderson,  160 
Mo.  App.  347,  142  S.  W.  358;  Boppart 
V.  Surety  Co.,  140  Mo.  App.  683,  126 
S.  W.  771. 

New  York. — Town  of  Whitestown 
V.  Title  Guaranty  &  Surety  Co.,  72 


Misc.  R.  (N.  Y.)  498,  131  N.  Y.  Supp. 
390. 

North  Carolina. — Bank  of  Tarboro 
V.  Fidelity  &  Deposit  Co.  of  Mary- 
land, 128  N.  C.  366,  38  S.  E.  908,  83 
Am.  St.  Rep.  682. 

Pennsylrania.  —  Brown  v.  Title 
Guaranty  &  Surety  Co.,  232  Pa.  St. 
337,  81  Atl.  410;  Young  v.  American 
Bonding  Co.,  228  Pa.  St.  373,  77  Atl. 
623. 

Texas. — American  Surety  Co.  v. 
San  Antonio  L.  &  T.  Co.  (Civ.  App.) 
98  S.  W.  387. 

Washington.  —  Pacific  National 
Bank  v.  Aetna  Indemnity  Co.,  33 
Wash.  428,  74  Pac.  590. 

22.  Brown  v.  Title  Guaranty  & 
Surety  Co.,  232  Pa.  St.  337,  81  Atl. 
410. 

23.  Van  Buren  County  v.  Ameri- 
can Surety  Co.,  137  Iowa  490,  115  N. 
W.  24. 

24.  Boppart  v.  Surety  Co.,  140  Mo. 
App.  683,  126  S.  W.  771,  per  Broad- 
dus,  P.  J. 


457  iSuBETY  Companies.  §  444 

And  in  a  recent  case  in  ]\lissouri  it  is  said :  "  The  deep  solici- 
tude of  the  law  for  the  welfare  of  voluntary  parties  who  bound 
themselves  from  purely  disinterested  motives  never  comprehended 
the  protection  of  pecuniary  enterprises  organized  for  the  express 
purpose  of  engaging  in  the  business  of  suretyship  for  profit.  To 
allow  such  companies  to  collect  and  retain  premiums  for  their 
services,  graded  according  to  the  nature  and  extent  of  the  risk, 
and  then  to  repudiate  their  obligations  on  slight  pretexts  that  have 
no  relation  to  the  risk,  would  be  most  unjust  and  immoral  and 
would  be  a  perversion  of  the  wise  and  just  rules  designed  for  the 
protection  of  voluntary  sureties.  The  contracts  of  surety  com- 
panies are  contracts  of  indemnity,  and  as  such,  fall  under  the  rules 
of  construction  applicable  to  contracts  of  insurance.  Since  they 
are  prepared  by  the  companies  and  generally  abound  with  condi- 
tions and  stipulations  devised  for  the  restriction  of  the  obliga- 
tion assumed  by  the  company,  such  stipulations  must  not  be  ex- 
tended to  favor  limitations  providing  for  forfeiture  of  the  con- 
tract. They  must  be  strictly  construed  and  no  unreasonable  right 
of  forfeiture  should  be  allowed.  "^^ 

§  444.  Surety  Contracts  Treated  as  Insurance  Contracts — Ap- 
plication of  Principle  to  Agents — Premiums. — In  applying  to 
surety  companies  principles  which  control  in  the  case  of  insurance 
companies  it  is  declared  that  the  law  of  agency  relating  to  the  con- 
tract of  liability  of  the  latter  class  of  companies  is  applicable  to 
surety  companies."^ 

It  was  said  by  the  court  in  this  case :  "  It  has  been  held  that 
an  agent  authorized  to  solicit  insurance  and  attest  or  countersign 
and  issue  policies  is  a  general  agent,  and  his  acts  and  knowledge 
in  reference  to  the  risk  assumed  are  the  acts  and  knowledge  of  his 
principal;  and  without  attempting  to  say  that  appellant  is  to  be 
held  as  doing  an  insurance  business,  the  method  by  which  its  busi- 
ness is  obtained  and  its  obligations  or  contracts  are  issued  to  its 
patrons  is  much  the  same,  and  we  see  no  reason  why  the  law  which 

See,  also.  Rule  v.  Anderson,  160  See,  also,  Boppart  v.  Surety  Co., 
Mo.  App.  347.  142  S.  W.  358.  140  Mo.  App.  683,  126  S.  W.  771. 

25.  Rule  V.  Anderson,  160  ]\Io.  App.  26.  Getchell  &  Alartin  Lumber 
347,  142  S.  W.  358,  per  Johnson,  J.    Mfg.  Co.  v.  Peterson  &  Spmpson,  124 

Iowa  599,  100  X.  W.  550. 


§  445  Suretyship  and  Guaeanty.  458 

governs  an  agency  in  one  case  is  not  equally  applicable  to  the 
other  :"^ 

Another  instance  in  which  the  obligation  of  a  surety  company 
is  likened  to  a  contract  of  insurance  is  in  respect  to  the  payment 
of  premium,  it  being  decided  that  an  indemnity  bond  guarantee- 
ing the  repayment  of  money  advanced  is  valid  without  a  payment 
of  the  premium  when  it  contains  no  condition  making  such  pay- 
ment a  prerequisite.^^ 

The  court  said  in  this  case  that  it  semed  "  that  the  rule  must 
be  that  when  the  insurer  delivers  a  bond  guaranteeing  the  acts  of 
another,  the  beneficiary  may  assume  that  the  premium  has  been 
paid ;  otherwise  that  the  bond  would  not  have  been  executed  and 
delivered ;  and  that  the  insurer  cannot  afterwards  be  heard  to  say 
that  the  premium  was  not  paid,  as  against  the  beneficiary  who  has 
in  good  faith  parted  with  value  on  the  strength  of  the  promise  in 
the  bond.  Especially  must  this  be  so  when  there  is  no  recital  in 
the  bond  that  the  pa^-ment  of  the  premium  is  a  necessary  pre- 
requisite to  give  it  vitality."^^ 

§  445.     Surety  Bond  and  Application  construed  Together. — 

As  in  the  case  of  insurance  contracts  so  in  the  case  of  surety  bonds 
it  is  frequently  required  that  an  application  shall  be  made  out  and 
filed  with  the  company  upon  which  its  action  is  based.  The  bond 
if  issued  by  its  terms  makes  the  application  a  part  thereof.  In 
such  a  case  the  contract  is  to  be  determined  by  construing  the 
bond  and  the  application  together  and  the  rights  and  liabilities  of 
the  parties  are  dependent  upon  the  construction  so  reached.^** 

27.  Per  Weaver,  J.  Where  a  surety  company  accepts 

28.  Pacific  National  Bank  v.  Aetna  and  adopts  the  terms  of  an  applica- 
Indemnity  Co.,  33  Wash.  428,  74  Pac.  tion  which  expressly  declares  that 
590.  the  life  of  the  bond  shall  be  the  in- 

29.  Per  Hadley,  J.  terval  "  between  the  date  of  said 
80.  See  §  287a  herein.  bond  and  the  completion  and  accept- 
AnsTvers  not  a  misrepresentation,   ance  of  the  work  covered  "  by  it,  the 

See    City    Trust,    Safe    Deposit    &  bond  expires  when  such  work  has 

Surety  Co.  v.  Lee,  204  111.  69,  68  N.  been   completed   and   accepted,   and 

E.  4S5;  Hawley  v.  United  States  i^i-  though  the  application  may  pro\ide 

■delity  &  Guaranty  Co.,  100  A'^p.  Div.  that  notice  shall  be  given   of  such 

(N.  Y.)    12,  90  N.  Y.  Supp.  893,  af-  completion  and  acceptance,  this  does 

firmed  184  N.  Y.  549,  76  N.  E.  1096.  not  abrogate  the  express  provision 


459  Surety  Companies.  §  446 

§  446.  Surety  Company  and  Agent — Apparent  Scope  of  Au- 
thority.— In  determining  the  question  whether  a  surety  company 
is  bound  by  the  acts  of  its  agent  the  principle  has  been  applied 
that  it  is  sufficient  to  charge  the  employer  with  liability  if  the 
acts  of  his  agent  are  within  the  apparent,  though  in  excess  of  the 
real,  scope  of  his  agency.^^ 

So  a  surety  company  having  furnished  its  agents  with  the  form 
of  a  bond,  signed  and  sealed  by  it  awaiting  only  the  signature  and 
delivery  of  the  agents  for  apparent  validity  is  held  to  be  liable 
thereon  for  having  put  it  within  the  power  of  the  agents  to  cause 
loss  or  disadvantage  to  innocent  third  persons.^^  And  where  a 
person  occupied  a  place  in  the  general  office  of  'a  surety  company 
and  persons  were  referred  to  him  as  manager  of  the  bonding  de- 
partment and  he  transacted  business  with  them  as  such  it  was  de- 
cided that  he  was  clothed  with  apparent  authority  by  the 
company  to  execute  a  bond  binding  upon  it.^^ 

A  general  agent  of  a  surety  company  in  a  particular  locality 
who  holds  himself  out  as  such  with  the  knowledge  of  the  com- 
pany, solicits  and  negotiates  surety  bonds  for  it,  receives  the 
premiums  and  transmits  them  to  the  company  and  delivers  the 
bonds,  has  authority  to  execute  a  contractor's  bond,  notwithstand- 
ing a  secret  restriction  on  his  authority  that  his  action  in  such  a 
matter  must  be  approved  by  the  company ;  and  the  company  is 
bound  by  his  action  by  accepting  premiums  and  paying  part  of 
the  obligation  created  by  the  bond.^* 

as  to  the  life  of  the  bond.     In  such  83.  Aerne  v.  Gostlow  (Oreg.  1911), 

a  case  the  company  can  collect  no  118  Pac.  277. 

premium    after    the    time    specified.  M.  Anderson    v.    National    Surety 

Aetna    Indemnity    Co.    v.    Ryan,    53  Co.,  196  Pa.  St.  288,  46  Atl.  306. 

Misc.  R.  (N.  Y.)  614,  103  N.  Y.  Supp.  Where  general  agents  of  a  surety 

756,  citing  Lord  v.  Cronin,  154  N.  Y.  company   appoint   a   district   agent, 

172,  47  N.  E.  1088.  and,  without  the  company's  require- 

31.  Bowers  v.  Bryan  Lumber  Co.,  ment,  insert  a  clause  that  the  bond 
152  N'.  C.  604,  68  S.  E.  19.  shall   not  be   valid   until   signed   by 

Wafyer    by    agent    of    failure    of  the  district  agent,  a  bond  signed  by 

obligee  to  give  immediate  notice  of  the  general   agents,  under  a  letter 

default    of    a    building    contractor,  of    attorney    empowering    them    to 

Boppart  V.  Illinois  Surety  Co.,  140  sign  all  bonds,  does  not  require  the 

Mo.  App.  675,  126  S.  W.  768.  signature   of  the   district   agent  as 

32.  Bowers  v.  Bryan  Lumber  Co.,  such,  where  he  is  the  principal  in 
152  N.  C.  604,  68  S.  E.  19.  the  bond.     Pacific  National  Bank  v. 


g  447  Suretyship  and  Guaranty.  460 

Where  a  bond  to  secure  the  performance  of  a  contract  is  de- 
livered by  the  company  to  the  principal  without  such  contract  at- 
tached and  the  company  knows  it  was  to  be  attached  and  the  bond 
also  provided  therefor,  by  such  act  the  surety  company  empowered 
the  principal  to  attach  such  contract  to  the  bond.^^ 


§  447.     Surety  Company  and  Agent — Written  Authority. — In 

determining  the  powers  of  an  agent  of  a  surety  company,  whose 
authority  is  conferred  upon  him  by  a  formal  instrument  the  rule 
applies  that  such  an  instrument  delegating  powers  is  ordinarily 
subjected  to  strict  interpretation  and  the  authority  is  not  to  be 
extended  beyond  that  which  is  given  in  terms  or  which  is  neces- 
sary to  carry  into  effect  that  which  is  expressly  given.^^ 

In  a  case  in  New  York  it  is  decided  that  a  surety  company 
which  has  appointed  an  agent  '^  to  execute  and  deliver  and  attach 
the  seal  of  the  company  to  any  and  all  bonds  to  be  filed  *  *  * 
under  the  Liquor  Tax  Law,"  the  bonds  to  be  valid  only  when 
signed  by  such  agent,  is  entitled  to  his  personal  judgment  in  re- 
Aetna  Indemnity  Co.,  33  Wash.  428,  judicial  actions  or  proceedings  in  a 
74  Pac.  590.  certain  locality  does  not  confer  au- 

35.  San  Antonio  Brewing  Ass'n  v.  thority  upon  such  agent  to  enter 
Abbott  Oil  Co.  (Tex.  Civ.  App.  1910),  into  an  agreement  with  another  per- 
129  S.  W.  373.  son    intending   to   go    upon    an    of- 

36.  United  States  Fidelity  &  Guar-  ficial  bond  that  he  should  be  liable 
anty  Co.  v.  McGinnis'  Adm'r  (Ky.  C.  only  temporarily,  and  should  be  re- 
A.  1912),  145  S.  W.  1112;  quoting  leased  from  all  liability  upon  the 
from  Craighead  v.  Peterson,  72  N.  execution  of  a  bond  by  the  com- 
Y.  279,  28  Am.  Rep.  150,  and  holding    pany. 

that  in  the  case  where  an  agent  A  letter  of  attorney  authorizing 
acts  under  a  power  of  attorney,  an  insurance  agent  to  execute  as 
which  is  a  recorded  instrument,  a  attorney  in  fact  all  bonds  guaran- 
person  dealing  with  him  is  charged  teeing  the  fidelity  of  persons  "  and 
with  notice  of  his  powers.  the  performance  of  contracts  other 

In  this  case  it  was  decided  that  than  insurance  policies  "  is  suffic- 
authority  so  given  by  a  surety  com-  iently  broad  to  authorize  a  contract 
pany  to  an  agent  to  sign  its  name  guaranteeing  the  repayment  of 
as  surety,  and  execute,  acknowl-  money  loaned  by  a  bank  for  the 
edge,  justify  upon,  and  deliver  any  purpose  of  completing  a  vessel.  Pa- 
and  all  stipulations,  bonds  and  un-  cific  National  Bank  v.  Aetna  Indem- 
dertakings  given  or  required  in  any    nity  Co.,  33  Wash.  428,  74  Pac.  590. 


461  SuKETY  Companies.  §§  448, 449 

spect  to  issuing  bonds  and  that  he  cannot  delegate  his  power  to  a 
clerk  in  his  otHce.^^ 

§  448.  Notice  to  Company  of  Default — Provision  as  to  Con- 
strued— Waiver. — The  condition  in  a  surety  company's  bond  re- 
quiring notice  to  the  surety  of  the  principal's  default  is  one  to  be 
performed  subsequent  to  loss  or  damage  by  reason  of  the  default 
and  for  which  recovery  is  sought.  It  is  not  essential  to  the  bind- 
ing force  of  the  contract  while  it  is  running  prior  to  default. 
Such  a  condition  pertains  to  the  remedy  and^  though  precedent 
to  the  maintenance  of  an  action,  is  not  to  be  as  strictly  construed 
as  one  involving  the  essence  of  the  agreement. ^^ 

Failure  to  give  written  notice  to  a  surety  company  of  the  breach 
of  the  building  contract  in  connection  with  which  the  bond  was 
given,  has  been  held  to  be  waived  where  it  appeared  that  the 
manager  of  the  company's  local  office  had  knowledge  of  the  true 
situation  and  acquiesced  in  the  course  pursued  by  the  obligee,  it 
being  declared  that  his  knowledge  and  acquiescence  were  those  of 
the  company  and  that  it  had  no  right  to  encourage  the  obligee  in 
the  belief  that  a  forfeiture  would  not  be  invoked  and  then,  when 
it  became  too  late  for  notice  to  be  given,  declare  the  contract  for- 
feited.^^ 

§  449.  Where  Company  Succeeds  to  Assets  of  Another  Com- 
pany,— A  surety  company  which  has  absorbed  all  the  assets  and 
assumed  all  the  liabilities  of  another  surety  company  and  is  in 
all  respects  its  corporate  successor  is  liable  for  any  liability  in- 
curred on  the  bond  of  the  company  which  it  has  absorbed.*'^ 

37.  Cullinan  v.  Bowker,  180  N.  Y.  been  forfeited  by  the  principal  for 

93,  72  N.  E.  911,  affirming  88  App.  a  violation  of  the  Liquor  Tax  Law, 

Div.    170,   84   N.   Y.    Supp.    696,    and  the   company   is    not   liable   on    the 

holding,     three     judges     dissenting,  bond,  although  upon  his  return  and 

that  where  a  county  treasurer,  with  in  ignorance  of  such  forfeiture  the 

knowledge  of  the  agent's  authority  agent   affixed  his   signature   to    the 

and  in  his  absence,  accepts  a  bond  bond. 

issued  by  his  clerk,  who  had  been  38.  Van  Buren  County  v.  Ameri- 

authorized  so  to  do,  and  who  stated  can  Surety  Co.,  137  Iowa  490,  115  N. 

that  the  agent  would  sign  it  upon  W.  24. 

his  return,  and  in  the  meantime  the  39.  Rule    v.    Anderson,    160    Mo. 

certificate    on    the    application    for  App.  347,  142  S.  W.  348. 

which  the  bond  had  been  issued  had  40.  Manny  v.  National  Surety  Co., 

103  Mo.  App.  716,  78  S.  W.  69. 


TABLE  OF  CASES. 


Abbott  T.  Brown,  131  111.  108- . . 
Abbott  V.  Morrissette,  46  Minn. 

10 

Abbott  V.  Zeigler,  9  Ind.  511 .. . 
Alrams  v.  Pomeroy,  13  111.  133. 
Absbire   v.   Howe,   23   Ky.   Law 

Rep.  1854  

Acers'  v.  Curtis,  68  Tex.  423... 

197, 
Ackerman's     Appeal,     106     Pa, 

St.  1 

.Ackley  v.  Parmenter,   98   N.   Y. 

425  

Ackley  v.   Skinner,  65  Misc.  R. 

(N.  Y.)   142 

Acorn  Brass  Mfg.  Co.  v.  Gilmore, 

142  111.  App.  567 340,  348, 

Adair     v.     Campbell,     4     Bibb. 

(Ky.)  13  

Adams  v  Flanagan,  36  Vt.  400. . 
Adams  v.  Gregg,  2  Starkie  53 .  .  . 
Adams  v.  Hayes,  120  N.  C.  383. . 
Adams  V.  Huggins,  78  Mo.  App. 

219 341, 

Adams  v,  Huggins,  73  Mo.  App. 

140 

Adams  v.  Jones,  12  Pet.   (U.  S.) 

207 

Adams  v.  Kellogg,  63  Mich.  616. 
Adams   v.    People,   12    111.   App. 

380 

Adamd  v.  Way,  32  Conn.  160 

Adle  V.  Metoyer,  1  La.  Ann.  254. 

Adler  v.  State,  35  Ark.  517 

Advance  Thresher  Co.  v.  Hogan, 

74  Ohio  St.  307.  .   67a, 

Aerne   v.    Gostlow    (Ore.    1911), 

118  Pac.  277 

Aetna  Indemnity  Co.  v.  City  of 

Little  Rock.  89  Ark.  95 


Sec. 
339 

112 
27 
69 

87 
196 
198 

167 

379 

387 

356 

406 
199 
147 
200 

384 

347 

355 
54 

423 
117 
171 
414 

153 

456 

100 


Seo. 

Aetna  Indemnity  Co.  v,  George 

A.  Fuller  Co.,  Ill  Md.  321 112e 

Aetna   Indemnity   Co.   v.    Ryan, 

53  Misc.  R.  (N.  Y.)  614 445 

Aetna  Indemnity  Co.  v.  Schroe- 

der,  10  N.  D.  110 141 

Aetna  Indemnity  Co.  v.  Town  of 

Comer    (Ga.    1911),    70    S.    E. 

676 144a 

Aetna  Indemnity  Co.  v.  Walters, 

110  Md.  673 59,  67,  101,  112c 

Aetna   Ins.   Co.   v.   Fowler,    108 

Mich.  557 127 

Aetna    Life   Ck).    v.    Middleport, 

124  U.  S.  534 157,  191 

Aetna  Life  Ins.  Co.  v.  Bablett, 

18  Wis.  668   287 

Aetna  National  Bank  v.  Ins.  Co., 

50  Conn.  167  28 

Agawam  Bank  v.  Sears,  4  Gray 

(Mass.)  95 106 

Agawam    Bank    v.    Strever,    18 

N.  Y.  502  87,  367 

Aiken  v.  Barkley,  2  Spear.  747. .  206 
Aiken  v.  Lang,  Adm'r,  106  Ky. 

652 346,  368 

Aikenson  v.  Smith,  89  N.  C.  72. .  271 
Albany  Co.   v.   Dorr,   25   Wend. 

(N.  Y.)   44   316 

Alber  v.   Froelich,   39   Ohio   St. 

245 226 

Albers  Commission  Co.  v.  Spen- 
cer (Mo.  1911),  139  S.  W.  321  222 
Alcatraz    Hall    Ass'n   v.    United 

States    Fidelity    &    Guaranty 

Co.,  3  Cal.  App.  338.112,  112a,  112e 

Alder  v.  State,  35  Ark.  517 414 

Alderman  v.  Roesel,  52  S.  C.  162  239 
Aldershaw  v.   King,   2   Hurl.   & 

N.  517   341 

Alderson  v.  Menes,  16  Nev.  298.  194 


(463) 


464: 


Table  of  Cases. 


Sec. 
Alderson's  Adm'r  v.  Alderson,  53 

W.  Va.  388    19 

Aldous  V.  Cornwell,  L.  R.  3  Q. 

B.  573 110 

Aldrich  v.  Ames,  9  Gray  (Mass.) 

76 382,  383,  395 

Aldrich  v,   Blake,   137   Mass.   384  151 
Alexander  v.   Bryan,   110   U.   S. 

414   242 

Alexander  v.  Ison,  107  Ga.  745.   335 
Alexandria    Water    Co.    v.    Na- 
tional Surety  Co.,  225  Pa.  St. 

1 112d 

Alford  V.  Baxter,  36  Vt.  158 145 

Alger  V.  Alger,  83  App.  Div.  (N. 

Y.)   168   363 

Alger  V.  Scoville,  1  Gray  (Mass. ) 

391 374,  386 

Allegheny   County   Light  Co.   v. 

Reinhold,  21  Pa.  Co.  Ct.  R.  118       2 
Allen  V.  Berryhill,  27  Iowa  531, 

534 92,  135 

Allen  V.  Commonwealth,  90  Va. 

356 423 

Allen    V.    Greenwood,    147    Wis. 

626.  ...    38 

Allen  V.  Jaquish,  21  Wend.   (N. 

Y.)   628    295 

Allen  V.  Kelly,  171  N.  Y.  1 263 

Allen  V.  Kelly,  55  App.  Div.   (N. 

Y.)    454   263 

Allen  V.  Kenning,  9  Ding.  618 .  .   367 

Allen  V.  Minor,  2  Call.  70 24 

Allen    V.    National    Surety    Co., 

144  App.  Div.   (N.  Y.)   509  224 

Allen   V.    Rightmere,    20    Johns. 

(N.  Y.)   365   349 

Allen  V.  State,  6  Blackf.   (Ind.) 

252 306 

Allen  V.  State,  61  Ind.  268.. 260,  SOS 
Allen  V.  Wood,  2  Baxt.   (Tenn.) 

301 329 

Allen   County   v.   United    States 

Fidelity    &    Guaranty    Co.,    29 

Ky.   Law  Rep.   356 112,   112d 

Allerton    v.    Eldridge,    56    Iowa 
709 21'3 


Sec. 

Allison  V.  Sutherlin,  50  Mo.  274.   158 

Alschuler  v.  Schiff,  164  111.  298.   295 

American  Bonding  Go.  v.  Loeb, 
47  Wash.  447,  448 66 

American  Bonding  Co.  v.  Ot- 
tumua.  City  of,  137  Fed.  572. .     30 

American  Bonding  Co.  v.  Pueblo 

Ins.  Co.,  150  Fed.  17 67,  100 

111,  130 

American  Bonding  &  Trust  Co. 
V.  Blount,  23  Ky.  Law  Rep. 
1632 301,  311 

American  Brewing  Co.,  70  App. 
Div.   (N.  Y.)    511 l'(4 

American  Dist.  Tel.  Co.  v.  Len- 
nig,  13  Pa.  St.  594 69 

American  Exch.  Nat.  Bank  v. 
Goubert,  67  Misc.  R.  (N.  Y.) 
602 232 

American  Radiator  Co.  v.  Ameri- 
can Bonding  &  Trust  Co.,  72 
Neb.  100   51 

American  Surety  Co.  v.  Boyle, 
65   Ohio   St.   486 67,  231 

American  Surety  Co.  v.  Law- 
renceville  Cement  Co.  (U.  S. 
C.  C),  110  Fed.  717 141,  151 

American  Surety  Co.  v.  Pauly, 
170  U.   S.  133    443 

American  Surety  Co.  v.  Pratt, 
67  Kan.  294 243 

American  Surety  Co.  v.  San  An- 
tonio L.  &  T.  Co.  (Civ.  App.), 
98  S.  W.  387 443 

American  Surety  Co.  v.  Shallen- 
berger  (U.  S.  C.  C.  1910),  183 
Fed.  636 439 

American  Surety  Co.  of  New 
York  V.  Koerr,  49  Tex.  Civ. 
App.  93    67,  224 

American  Tel.  Co.  v.  Lennig,  139 
Pa.   St.  595    80 

Ames  V.  Armstrong,  106  Mass.  15     23 

Ames      A.      Colburn,      11      Gray 

(Mass.)  390 105 

Ames  V.  Dorrok,  76  Miss.  187..  259 
Ames  V.  Jackson,  115  Mass.  512.   372 


Tabi^  of  Cases. 


465 


Sec. 
Ames  V.  Maclay,  14  Iowa  281. ..  95 
Ames  V.  Williams,  74  Wis.  404.  259 
Amherst  Bank  v.   Root,   2   Met. 

(Mass.)  522.  .  .  282,  291,  298 

Ammons  v.  People,  11  111.  6 260 

Ammons  v.  Whitehead,  31  Miss. 

99      228 

Amy    V.    Supervisors,    11    Wall. 

(U.  S.)    136   337 

Anderson  v.  Anderson,  150  Iowa 

665 367 

Anderson  v.  Blair,  118  Ga.  211..  337 
Anderson  v.  Blakeley,  2  Watts. 

&  S.  237  354 

Anderson  v.  Brumly,  115  Ga.  644  3o9 
Anderson  v.  Johett,  14  La.  Ann. 

624  333 

Anderson  v.  Langdon,  1  Wheat.   (U. 

S.)  85 298 

Anderson     v.     National     Surety 

Co.,  196  Pa.  St.  288 446 

Anderson  v.  Norvill,  10  111.  App. 

240  36 

Anderson    v.    Spencer,    72    Ind. 

315 380,  382,  383,  416 

Anderson  v.  Thompson,  10  Bush 

(Ky.)  132 310 

Anderson  v.  Warne,  71  111.  20..  365 
Andre  v.  Fitzhugh,  18  Mich.  93.  214 
Andrews   v.    Beall,   9   Cow.    (N. 

y.)  693 88 

Andrews  v.  Ford,  106  Ala.  173.  .  277 
Andrews  v.  Morrett,  53  Me.  589.  43 
Andrews    v.    Planters    Bank,    7 

Sm.  &  M.  192   26 

Andrews  v.  Tedford,  37  Iowa  315  339 
Andrews  &  Co.  v.  Stowers,  Fur- 
niture (Ala.  1910),  52  So.  316.  356 
Angero  v.  Keen,  1  Mees.  &  W. 

390 71 

Angle  V.  Insurance  Co.,  92  U.  S. 

330 57 

Anthony   v.   Fritts,   45    N.    J.   L. 

1 170,  m 

Anthony    v.    Hcvman,    14    Kan. 

494  12 


Sec. 
Antisdel   v.   Williamson,   165  N. 

Y.  372 363 

Antisdel  v.  Williamson,  37  App, 

Div.  (N.  Y.)  167 341 

Anvil  Gold  Mining  Co.  t.  Hoxsie, 

125  Fed.  724 222 

Apgar  V.  Hiler,  58  N.  H.  523 382 

Apgar  V.  Hiler,  24  N.  J.  L.  812.  .  383 
Apgar  V.  Wilson,  24  N.  J.  L.  812.  183 
Appleby  v.   Robinson,   44   Barb. 

(N.  Y.)   316   412 

Appleton    V.    Bascom,    3    Mete. 

(Ky.)   169 11,  35,  176,  177,  187 

Appleton    V.    Parker,    15    Gray 

(Mass.)  173 122 

Arcedeckna,    In    re,    24    Ch.    D. 

709      198,  205 

Archer    v.     Commonwealth,     10 

Gratt.  (Va.  627  431 

Archer  v.  Douglass,  5  Denio  307  171 

Archer  v.  Hale,  4  Bing.  464 241 

Archer  v.  Noble,  3  Me.  418 324 

Ardesco  Oil  Co.  v.  Oil  Co.,  66  Pa. 

St.  375 193 

Arents     v.     Commonwealth,     18 

Gratt.   (Va.)   750 339,  357 

Arkansas  Valley  Town  &  Land 

Co.  v.  Lincoln,  56  Kan.  145...  30 
Arlington   v.   Merricke,  2   Sand. 

411 284 

Armitage  v.  Pulmer,  37  N.  Y.  494  209 
Armstrong  v.  Canal  Co.,  14  Utah 

450 341 

Armstrong  v.  Gilchrist,  2  Johns. 

Cas.  (N.  Y.)  429 175 

Armstrong  v.  Harsham,  61  Ind. 

52 206 

Armstrong  v.   Toler,  11  Wheat. 

(IT.  S.)  258 38 

Arnold  v.  Bryant,  8  Bush   (Ky.) 

668 347 

Arnot  V.  Railroad  Co.,  67  N.  Y. 

315 31 

Arnott  V.  Symonds,  85  Pa.  St.  99  347 
Arquette  v.  Marshall  County,  75 

Iowa  191 437 

Asher  v.  Cabell,  50  Fed.  818 ."20 


466 


Table  of  Cases. 


Sec. 
Ashland  Bank  v.  Jones,  16  Ohio 

St.  145    357 

Askins  v.  Commonwealth,  1  Duv. 

(Ky.)  275 421 

Aspinwall  v.  Sacchi,  57  N.  Y.  331       3 

203 
Atkins  V.  Tredgold,  2  B.  &  C.  23.  371 
Atkinson  v.  Smith,  89  N.  C.  72.  .  272 
Atlanta  v.   Turner,   8   Ga.   App. 

213 42 

Atlantic,  etc.,  Tel.  Co.  v.  Barnes, 

64  N.  Y.  385 127,  287,  290,  292 

Atlantic  Trust  &  Deposit  Co.  v, 

Unon  Trust  &  Title  Corpora- 
tion, 110  Va.  286 114,  126 

Atlas  Bank  v.  Anthony,  18  Pick. 

(Mass.)  238  291 

Atlas  Bank  v.  Brownell,  9  R.  I. 

168 88,  142,  287,  288,  291,  293 

Atterstein  v.  Alpaugh,  9  Neb.  237  75 
Atwater  v.  Farthing,  118  N.  C. 

388 203,  206 

Atwood     V.     Lester,     20     R.     I. 

660 339,  347 

Atwood  V.  Vincent,  17  Conn.  575  152 
Auchawpaugh     v.     Schmidt,     70 

Iowa  642 173 

Alierback  v.  Rogin,  40  Misc.  R. 

(N.  Y.)  605 180 

Australian  Joint  Stock  Bank  v. 

Bailey       (1899),      App.      Cas. 

396 59,  66,  67,  299 

Avant  V,  State,  33  Tex.  Crim.  312  419 

Avery  v.  Rowell,  59  Wis.  82 26 

Ayers  v.  Dixon,  78  N.  Y.  318 11 

Ayers  v.  Hite  (Va.),  34  S.  E.  44.   272 

Ayers  v.  Milony,  53  Mo 51 

Ayrault  v.  Bank,  47  N.  Y.  570. . . .  336 

B. 

Babb  V.  Oakley,  8  Cal.  94 421 

Babcock,  In  re,  3  Story  (U.  S.) 

393,  399.  ...   15,  145 

Babcock  v.  Bryant,  12  Pick.  (N. 

Y.)   133   348 

Babcock  v.  Hubbard,  2  Conn.  536  23 

Babka  v.  People,  73  111.  App.  240  325 


Sec. 
Bachelder      v.      Fiske      17      Mass. 

464 194a 

Backhouse  v.  Hall,  6  B.  &  S.  507  362 
Backley  v.  Miller,  96  Ark.  379..  67a 
Bacon  v.  Fairman,  6  Conn.  121.  .  252 
Bacon  v.  Montauk  Brewing  Co., 

130  App.  Div.   (N.  Y.)   737 30 

Badely  v.  Bank,  34  Ch.  Div.  536.  184 
Badham  v.  Jones,  64  N.  C.  655..  333 
Baehmer    v.    Schuylkill,   49    Pa. 

St.  452 61 

Bagles  v.  Wallace,  56  Hun    (N. 

Y.)   428   381 

Bagley  v.  Cohn,  121  Cal.  604 359 

Baglin  v.  Title  Guaranty  &  Surety 

Co.,    (U.    S.    C.    C.)     166    Fed. 

356 122,  141 

Bagnell  v.  American  Surety  Co., 

102   Mo.  App.  707 138 

Bailey  v.  Adams,  10  N.  H.  162. .     46 

Bailey  v.  Croft,  4  Taunt.  611 40 

Bailey     v.     Miller     (Ind.     App. 

1910),  91  N.  E.  24 339 

Bailey  v.  Rosenthal,  56  Mo.  385.   228 

Bailey  v.  State,  71  Ark.  498 422 

Bailey  v.  Warner,  118  Fed.  395. .  323 
Bailey  Loan  Co.  v.  Seward,  9  S. 

Dak.  326 4 

Baker    «&    Berry    Hill    Mineral 

Spring,  109  Va.  776. 389 

Baker  v.  Bradley,  42  N.  Y.  316. .  341 
Baker  v.  Briggs,  8  Pick.  (Mass.) 

122   130,  148,  170 

Baker  v.  Bryan,  64  Iowa  562 112 

Baker  v.  Butler,  41  Ohio  St.  519.  336 
Baker  v.  Fidelity  &  Deposit  Co. 

of  Maryland,  24  Ky.  Law  Rep. 

2196 323 

Baker  v.  Frellson,  32  La.  Ann. 

822 233 

Baker  v.  Gilson,  18  Neb.  89 20 

Baker  v.  Kelly,  41  Miss.  696 349 

Baker  v.  Kennett,  54  Mo.  82 135 

Baker  v.  Robinson,  63  N.  C.  191.  347 
Baker  v.  State,  21  Tex.  Cr.  App. 

359 434 


Table  of  Cases. 


467 


Sec. 
Baker  v.  Walker,  14  Mees.  &  W. 

465  122 

Baker  City  v.  Murphy,  30  Ore. 

405 305 

Baker  County  v.  Huntington,  46 

Ore.  275   51 

Baldwin  v.  Bank,  1  La.  Ann.  560.  336 
Baldwin  v.  Fleming,  90  Ind.  177.     10 

199 
Baldwin    Coal    Co.    v.    Dans,    15 

Colo.  App.  371   381 

Balderstone   v.   Rubber   Co.,    18 

R.  I.  S88  394 

Ball  V.  Chancellor,  47  N.  J.  L. 

125 273 

Ballane   v.   Ebsworth.    3    Camp. 

52,  55   79,     83 

Ballard  v.  Logan   (W.  Va.  1911), 

70   S.   E.   558    232 

Ballston  v.  Wood,  15  Iowa  160. .  ■  8 
Bamford  v.  lies,  3  Exch.  280..  286 

297 
Bandler   v.   Bradley,    110   Minn. 

66 93a,  171 

Bangs  V.  Strong,  4  N.  Y.  315. 64,  130 
Bangs   V.    Strong,   10   Paige    (N. 

Y.)   11   95 

Bank  v.  Alden,  129  U.  S.  372 26 

Bank  v.   Anderson  Bros.  Ry.  & 

Min.  Co.,  65  Iowa  692.126,  140,  141 

Bank  v.  Ayers,  28  S.  D.  216 356 

Bank  v.  Barrington,  2   P.  &  W. 

(Pa.)  27 72,  297 

Bank  v.  Brooks,  64  Kan.  285 113 

Bank  v.  Brown,  46  N.  Y.  170 19 

Bank  v.  Clare,  76  Tex.  47 22 

Bank  v.  Coster,  3  N.  Y.  202 40 

Bank  v.  Creditors,  86  N.  C.  323.   271 

272 
Bank    v.    Cumberland    Lumber 

Co.,  100  Tenn.   479 19 

Bank  v.  Eyre,  107  Iowa  13 10 

Bank  v.  Fidelity  &  Deposit  Co., 

128  N.  C.  366 443 

Bank  v.  Grifford,  79  Iowa  300.  130 

132 


Sec. 
Bank  v.  Hardesty,  28  Ky.  Law 

Rep.  1285  , 85 

Bank  v.  Haskell,  51  N.  H.  116.51,  147 

Bank  v.  Hock,  89  Pa.  St.  324 29 

Bank  v.  Hyde,  131  Mass.  77 55 

102,  104 

Bank  V.  Jeff's,  15  Wash.  231 171 

Bank  v.  Johnson,  9  Ala.  622...  118 

Bank  v.  Kirkwood,  172  111.  563. .  21 

Bank  v.  Layne,  101  Tenn.  45 210 

Bank  v.   Lorrlmer,  76  Ark.  245  .  152 

157 
Bank  v.  Lumber  Co.,  100  Tenn. 

479 19 

Bank  v.  Parrott,  77  Ind.  1 356 

Bank  v.  Potaces,  10  Watts  (Pa.) 

152 158 

Bank  v.  Potius,  10  Watts  148. . .  325 

Bank  v.  Railway  Co.,  65  Iowa  692  126 
Bank  v.  Root,  2  Mete.   (Mass.), 

522 282,  291,  298 

Bank  v   Sinclair,  60  N.  H.  100..  348 

Bank  v.  Sloo,  10  La.  Ann.  543.  .  355 
Bank  v.  Smith,  12  Allen  (Mass.) 

243 77,  183,  319 

Bank  v.  State,  62  Md.  88 134 

Bank  v.  Union  Packing  Co.,  60 

Wash.  456    348 

Bank  v.  Whitman,  66  111.  331 35 

Bank     v.     Wollaston,     3     Harr. 

(Del.)   90  72,  286 

Banning  v.  Hall,  70  Minn.  89...  89 
Banor  v.  Macdonald,  3  H.  L.  Cas. 

226   286 

Bantley  v.  Baker,  61  Neb.   92..  329 

332,  333 

Barber  v.  Burrows,  51  Cal.  404.  55 
Barber  v.  Ruggles,  27  Ky.  Law 

Rep.  1077   51 

Barclay  v.  Lucas,  1  Tenn.  R.  291  84 

Barela  v.  Tootle,  29  Colo.  55.224,  225 
Bargate  v.   Shortridge,  5   H.   L. 

Cas.  297   28 

Barge    v.    Van    Der    Horek,    54 

Minn.  497  208 

Barker  v.  McClelland  (Ind.  App. 

1912),  98  N.  E.  300 67 


468 


Table  of  Cases. 


Barker  v.  Parker,  28  Ark.  390. . 
Barker  v.  Scudder,  56  Mo.  272. . 


Sec. 

38 

353 

390 

Barker  v.  Wheeler,  60  Neb.  470.  301 

Barker  Land  &  Improvement  Co. 

V.  Ayes,  43  Ind.  App.  513 66 

Barksdale     v.     Butler,     6     Lea 

(Tenn.)   450   65,  243 

Barman    v.    Carhartt,    10    Mich. 

338.  .  .  .  .    359 

Barnes  V.  Beyers,  34  W.  Va.  303.  21 
Barnes  v.  Century  Savings  Bank, 

149  Iowa  367 126,  141 

Barnes  v.  Mott,  64  N.  Y.  397 11 

Barnes    v.    Sammons,    128    Ind. 

596 145,  146 

Barnes  v.  Van  Keuren,  31  Neb. 

165 36,  41,  42 

Barnes  v.  Whitaker,  45  Wis.  204  334 
Barnes   Cycle   Co.   v.    Schofield, 

111  Ga.  880.  .   348 

Barney  v.  Babcock's  Estate,  115 

Wis.  409   243 

Barney  v.  Clark,  46  N.  H.  514. ..   147 

Barney  v.  Grover,  28  Vt.  391 162 

Barr  v.  Mitchell,  7  Ore.  346 347 

Barrett  v.  Bass,  105  Ga.  421 132 

Barrett  v.  Davis,  104  Mo.  549-.  113 
Barrett  v.  May,  2  Bailey  L.  1 . . .  349 
Barrett-Hicks  Co.  v.  Glas,  9  Cal. 

App.  491 100,  112a 

Barricklow  v.  Stewart,  Execu- 
tor, 31  Ind.  App.  441 34d 

Barrington  v.  Bank,  14  Serg.  & 

R.  405   285 

Barrow  v.  Shields,  13  La.  Ann. 

57 145 

Barry  v.  Screwmen's  Associa- 
tion, 67  Tex.  250.  70 

Barry  v.  Rawson,  12  N.  Y.  462.  .   194 

210 

Bartels  v.  People,  152  111.  557..   333 

Barth  v.  Graf.  101  Wis.  27..  180,  182 

183,  195,  382,  383 

Bartholomew  v.  First  Nat.  Bank, 

57  Kan.  594 152,  155,  156,  157 

Bartlett  v.  Atty.-Gen.,  Park  277 .  313 


Sec. 
Bartlett  y.  Board,  59  111.  364...  56 
Bartlett  v.  Cunningham,  85   111. 

22 145 

Bartlett   v.    Illinois    Surety    Co., 

142  Iowa  538...  100,  101,  112a,  134 
Bartlett  v.   Illinois   Surety   Co., 

112  Minn.   462    112b 

Bartlett  v.  Pitman,  106  Me.  117.  114 
Bartlett  v.  Wheeler,  195  111.  445.  69 
Bartling  v.  State,  67  Neb.  637.  ..  423 
Barto  V.  Phillips,  28  Wash.  482. .  374 

Barton  v.  State,  24  Tex.  250 436 

Bartow  v.  Haltom,  93  Ark.  *631.  35 
Baskin  v.  Andrews,  53  Hun   (N. 

Y.)  95    86 

Bassett    v.    Fidelity    &    Deposit 

Co.,  184  Mass.  210 252,  253 

Bassett  v.  Hughes,  43  Wis.  319. .  12 
Bassett  v.   O'Neil   Coal   &  Coke 

Co.,  140  Ky.  346 35,     52 

Bassett  v.  Perkins,  65  Misc.  (N. 

Y.)   103   357 

Basshears  v.  Rowe,  46  Mo.  54. . .  341 
Batchelder  v.  White,  80  Va.  103 .     55 

100 
Batcheldor  v.   Jennings,  83   111. 

App.  569  364 

Batchelor  v.  Bank,  78  Ky.  435..   291 

Bates  V.  Bank,  7  Ark.  394 146 

Bates  V.  Smith,  23  Ky.  Law  Rep. 

2134 325 

Bathwell  v.  Sheffield,  8  Ga.  569.   327 

Bau  V.  Mackey,  14^  U.  S.  220 113 

Baucus  V.  Barr,  45  Hun   (N.  Y.) 

582 251 

Baucus  V.  Stover,  89  N.  Y.  1 252 

Bauer  v.  Gray,  18  Mo.  App.  164.  192 
Baum  V.  Lyman,  72  Miss.  932. . .  260 
Baumgartner  v.  McKinnon   (Ga. 

App.  1912),  73  S.  E.  518.97,98,  134 
Bauschard  Co.  v.  Fidelity  &  Cas- 
ualty Co.  of  New  York,  21  Pa. 

Super.  Ct.  370 66,  93a,  100,  134 

Baut  V.  Donly,  160  Ind.  670 122 

Bay  V.  Tallmadge,  5  Johns.  Ch. 

(N.  Y.)  305 95 

Bay  V.  Williams,  112  III.  91 13 


Table  of  Cashes. 


469 


Sec. 
Bayless     v.     Baylesa,     4     Cold, 

(Tenn.)    359 250 

Bayle  v.  Ins.  Co.,  6  Hill  (N.  Y.) 

476 298 

Balyis   v.  Wallace,   56   Hun    (N, 

Y.)   428   381 

Bayne  v.  Bank,  52  Pa.  St.  343.  . .  291 
Bayne  v.  Cusinmano,  50  La.  Ann. 

361 2 

Bays  V.  Conner,  105  Ind.  415...     20 
Bay  Shore  Lumber  Co.  v.  Dono- 
van, 149  Ala.  232 66 

Baxter     v.     Hurlburt,     15     Pa. 

Super.  Ct.  541 377 

Baxter  County   Bank  v.   Ozark, 

98  Ark.  143 65 

Beach  v.  Doynton,  26  Vt.  725 162 

Beakes  v.  Da  Cunha,  126  N.  Y. 

293 341 

Beal  V.  Brown,  13  Allen  (Mass.) 

114 372 

Bealer  v.  Mayor,  19  C.  B.  (N.  S.) 

76 116 

Bean  v.   Parker,   17   Mass.    591, 

603 52,  54,  411 

Beard  v.  Roth,  35  Fed.  397 248 

Beard  v.  Sweeney,  1  S.  D.  642. .  54 
Bearden  v.  State,  89  Ala.  21.402,  421 
Beardsley    v.    Hawes,    71    Conn. 

39 4,  340,  349,  350,  359 

Beaty  v.  Irwin,  18  Ind.  131 390 

Beaver  v.  Beaver,  23  Pa.  St.  167.  149 
Beaver  v.  Slanker,  94  111.  175..   154 

191 
Bebee  v.  Moore,  3  McLean    (U. 

S.)    387    36 

Bechervaise    v.    Lewis,   L.    R.    7 

C.  P.  372 144 

Becker  v.   Krank,  75   App.   Div. 

(N.  Y.)    191   374 

Becker    v.    Northway,    44    Minn. 

61 144 

Becker  v.  People,  164  111.  267..  229 
Beconty  v.  Sapperstein  (Ind.  App. 

1910),  92  N.  E.  551   240 

Beech   Grove   Improvement   Co. 

V.    Title    Guaranty    &    Surety 


Sec. 

Co.  (Ind.  App.  1912),  98  N.  E. 

373 67 

Beele  v.  Finnell,  85  Mo.  App.  438  381 
Beers    v.   Haughton,    1    McLean 

(U.  S.  C.  C.)  226 412 

Beggs  V.  Teackle,  5  Binn.   (Pa.) 

332  408 

Belden  v.  Hurlbut,  94  Wis.  562. .  51 
Belding  v.  State,  25  Ark.  315..   424 

426.  431 
Belknap  v.  Bender,  75  N.  Y.  466  379 

Belknap  v.  Davis,  21  Vt.  409 408 

Bell  V.  Boyd,  76  Tex.  133.. 8,  37,  204 
Bell  V.  Bruen,  1  How.  (U.  S.)  169  35& 
Bell     V.     Campbell     (Civ.     App. 

1912),  143  S.  W.  953 67a,  152 

Bell  V.  Morrison,  1  Pet.   (U.  S.) 

351 90 

Bell  V.  People,  94  111.  230 255 

Bell  V.  Pierce,  146  Mass.  58 405 

Bell  V.  Walker,  54  Neb.  222.  .134,  226 
Bellaire   v.   Ebsworth,   3   Camp. 

55 83,  356 

Belleville  Sav.  Bank  v.  Born- 
man,  124  111.  200 129,  350 

Bellinger  v.  Thompson,  26  Ore. 

320 247 

Belloni    v.    Freeborn,    63    N.    Y. 

383 67,  356 

Belond  v.  Guy,  20  Wash.  160...  415 
Beltine  C.  &  Mfg.   Co.  v.   Zulfer, 

155   111.   App.   308    377 

Bemis  v.  Gannett,  8  Neb.  236 233 

Benchfield    v.    Haffey,    34    Kan. 

42 183,  319 

Benedict  v.  Jones,  129  N.  C.  475.  119 
Benjamin  v.  Ver  Nooy,  36  App. 

Div.  (N.  Y.)  581 1,  49,  171 

Benne  v.  Schnecko,  100  Mo.  250.  Ib3 
Bennett  v.  Buchanan,  3  Ind.  47.  180 
Bennett  v.  Draper,  139  N.  Y.  272  356 
Bennett  v,  Graham,  71  Ga.  211.     65 

243 
Bennett  v.  State,  58  Miss.  557..  328 
Bennett  v.  Taylor,  43  Tex.  Civ. 

App.  30  128 

Benny  v.  Crane,  80  111.  244 348 


470 


Table  of  Cases. 


Sec. 
Benson  v.  Phipps,  87  Tex.  578. .  46 
Benthal  v.  Judkins,  13  Met.  265.  347 
Benton  v.  Martin,  52  N.  Y.  570. .  129 
Benton    County    Sav.    Bank    of 

Norway     v.     Boddicker,     105 

Iowa  548  50,  51,     52 

Berg   V.    Radcliff,   6   Johns.    (N. 

Y.)  302  6,     68 

Berg  V.  Spitz,  87  App.  Div.    (N. 

Y.)  602 377,  397,  398 

Bergen  v.  Williams,  4  McLean, 

125 223 

Bergevin  v.  Wood,  11  Cal.  App. 

643 66 

Berghaus  v.  Alter,  9  Watts  386.     97 
Berkhead  v.  Brown,  5   Hill    (N. 

Y.)    34 103 

Berlin    National    Bank   v.   Guay 

(N.  H.  1911),  81  Atl.  475 123 

Berman  v.  Elm  Loan  &  Savings 

Ass'n,   114   Md.    191.. 93a,    113 

114,  121 
Berman     v.     Shelby,     93     Ark. 

472 100,  111 

Bernhardt  v.   Button,  146   N.  C. 

206 74 

Bernheimer  v.  Charak,  170  Mass. 

179 131,  216 

:Berridge  v.  Berridge,  44  Ch.  Div. 

168 208 

Berry  v.  Pullen,  69  Me.  101 375 

Berryman   v.   Manker,   56   Iowa 

50 110 

Besinger   v.   Wren,    100   Pa.   St. 

500 72,     80 

Bessemer  Coke  Co.  v.  Gleason, 

223  Pa.  St.  84 66 

Besshears  v.  Rowe,  46  Mo.  501. .  384 
Bessinger  v.  Dickerson,  20  Iowa 

260 334 

Best   Brewing    Co.    v.    Klassen, 

185  111.  37   28,     30 

Bester  v.  Walker,  4  Gil.  (111.)  3.   359 
Beverldge    v.     Chatlain,     1     111. 

App.  594  405 

Bickford     v.     Gibbs,     8     Cush. 

(Mass.)  154  39,  341,  342 


Sec. 
Biglane  v.  Hicks  (Miss,  1903), 

33  So.  413 377 

Bill  v.  Barker,  16  Gray  (Mass.) 

62  83 

Bllings  T.  Lafferty,  31  111.  318..  333 
Billings  v.  Teeling,  40  Iowa  607.  332 
Bing  V.  Clarkson,  2  Barn.  &  Cr. 

14 122 

Bird  V.  Mitchell,  101  Ga.  46.  .243,  246 
Birdsall  v.  Heacock,  32  Ohio  St. 

177 340,  356 

Birkmyr  v.  Darnell,  Salk,  27 .  .  374 
Bisbee  v.  Gleason,  21  Neb.  534. .  264 
Bischoff  V.  Engel,  10  App.  Div. 

(N.  Y.)  240 242 

Biscoe  V.  Jenkins,  5  Eng.  108. . .  371 
Bishop    v.    Earl,    17    Wend.    (N. 

Y.)   316  .  .  .  411 

Bishop  v.  Eaton,  161  Mass.  496.   348 

355 
Bishop  V.  Freeman,  42  Mich.  533  67 
Bishop  V.  State,  16  Ohio  St.  419.  426 
Bissell  V.  Lewis,  4  Mich.  450...  370 
Bissell  V.   Saxton,   66   N.  Y.   55, 

60 273,  276,  301,  302 

Bissig  V.  Britton,  59  Mo.  204 382 

Bize  V.   Dickanson,   1   Term.  R. 

285   394 

Bjoin  V.  Anglim,  97  Minn.  526..     51 

54 
Black  V.  Bank,  149  Mass.  250.  • .  164 
Black  V.  Gentery,  119  N.  C.  502.  272 
Black  V.  McCarley's  Ex'r,  31  Ky. 

Law  Rep.  1198 19,  171 

Black  V.   Oblender,   135   Pa.   St. 

526 70 

Black's  Appeal,  83  Mich.  513...  361 
Blackerbush  v.  Dorsett,  138  111. 

167.  .  .  .   236 

Black    Masonry    ^    Contracting 

Co.    v.    National    Surety    Co. 

(Wash.)    1911),  112  Pac.  517.   93a 

112© 
Blackmore      v.      Granbery,      98 

Tenn.  277  97 

Black  River  Bank  v.  Page,  44  N. 

Y.  453   132 


Table  of  Cases. 


471 


Sec. 
Blackstone    Bank    v.    Hill,    10 

Pick.  (Mass.)  153 121 

Blades  v.  Dewey,  136  N.  C.  176. .  70 
Blair  v.  Ins.  Co.,  10  Mo.  559.. 84,  285 
Blake    v.    Traders'    Nat.    Bank, 

149  Mass.  250  164 

Blake  v.  Vesey  (Tex.  Civ.  App. 

1912),  143  S.  W.  220 186 

Blanchard     v.     Blanchard,     133 

App.  Div.  (N.  Y.)  937.174,  176,  372 
Blanchard     v.     Blanchard,     61 

Misc.  R.  (N.  Y.)   497 174,  176 

Blanding   v.    Wilson,    107    Iowa 

46 364 

Blanser  v.  Diehl,  95  Pa.  St.  350.  261 
Blasdell    v.    Erickson,    157    111. 

App.  615 393 

Blazer  v.  Brindy,  15  Ohio  St.  57.     64 

115 
Bleeker  v.  Hyde,  3  McLean   (U. 

S.)  279 45 

Block  V.  Dorman,  51  Mo.  31 90 

Block's  Appeal,  83  Mich.  513...   361 

Bloom  V.  Helm,  53  Miss.  21 26 

Bloom  V.  McGrath,  53  Miss.  249.  398 
Bloxsom  V.  Williams,  3  B.  &  C. 

233 48 

Blue     Island     Brewing     Co.     v. 

Fraatz,  123  111.  App.  26 30 

Blumenthal    v.    Moore,    106    Ga. 

424 377,  384,  392,  396 

Blumenthal  v.  Tibbits,  160  Ind. 

70 374 

Blydenburgh  v.  Bingham,  38  N. 

Y.  371 137 

Blythe  v.  People  (Colo.  App.), 

66  Pac.  680  325 

Boalt  V.  Brown,  13  Ohio  St.  364.  107 

361,  362 
Board   of   Com'rs   of    St.    Louis 

County  V.  Bank  of  Duluth,  75 

Minn.  174.  .  .    134 

Board  v.  Branham,  57  Fed.  179.  .  138 
Board    v.    Cincinnati,    etc.,    Co., 

128    Ind.    240    385 

Board  v.  Jewell,  44  Minn.  427..  316 
Board  v.  Pabst,  70  Wis.  352 71 


Sec. 

Board  v.  Sweeney,  1  S.  Dak. 
642 52 

Board  v.  Thompson,  33  Ohio  St. 
321 38 

Boardman  v.  Hanna  (U.  S.  C. 
C),   164  Fed.   527 366 

Boardman  v.  Paige,  11  N.  H, 
431,  437  172,  197 

Boardman  Tower  v.  Flagg,  70 
Minn.  338  314 

Board  of  Com'rs  of  Gibson 
County  V.  Cincinnati  Steam- 
Heating  Co.,  128  Ind.  240 385 

Board  of  Commissioners  of 
Davidson  Co.  v.  Dorsett,  151 
N.  C.  307 194,  196,  205,  323 

Board  of  Com'rs  of  Ramsey 
County  V.  Elmund,  89  Minn.  56  301 

Board  of  Com'rs  of  St.  Louis 
County  V.  Security  Bank  of 
Duluth,  75  Minn.  174 134 

Board  of  Education  of  Preston 
Independent  School  Dist.  No. 
452  V.  Robinson,  81  Minn.  305.   51 

302 

Board  of  Education  of  City  of 
St.  Louis  V.  United  States  Fi- 
delity &  Guaranty  Co.,  155  Mo. 
App.  109  67 

Board  of  Education  of  St.  Louis 
V.  United  States  Fidelity  & 
Guaranty  Co.  (Mo.  App.  1911), 
134  S.  W.  118 174 

Board  of  Supervisors  of  Mil- 
waukee Co.  v.  Pabst,  70  Wis. 
352   71 

Board  of — see  Board. 

Boardwall  v.  Paige,  11  N.  H.  437  172 

Bobo  V.  Vaiden,  20  S.  C.  271 247 

Bockenstedt  v.  Perkins,  73  Iowa 
23 303 

Boeff  V.  Rosenthal,  37  Misc.  R. 
(N.  Y.)   852   377 

Bogarth  v.  Breedlove,  39  Tex. 
561   109 

Boggs'  V.  Curtin,  10  Serg.  &  R. 
211 187 


472 


Table  of  Cases. 


Sec. 

Boggs  V.  State,  14  Tex.  10 316 

Boggs  V.  Teackle,  5  Binn.   (Pa.) 

332  412 

Bohannon  v.  Combs,  12  B.  Mon. 

(Ky.)  563  73 

Boig  V.  Stuhl,  4  Pa.  Super.  Ct. 

52  292 

Boise    City    v.    Randall,    8    Ida. 

119   235a 

Bollman  v.  Pasealk,  22  Neb.  761  54 
Bolton  V.  Gifford  &  Co.,  45  Tex. 

Civ.  App.  140   77 

Boltz,  Estate  of,  133  Pa.  St.  77.  338 
Bond   V.    Tarwell   Co.,    172   Fed. 

58.  .  .  .    348,  354,  370 

Bones  v.  Aiken,  35  Iowa  534...  163 
Bonham  v.  People,  102  111.  434. .  263 

264 
Bonnell  v.  Prince,  11  Tex.  Civ. 

App.    399    171 

Bonner  v.  Nelson,  57  Ga.  433..  114 
Bonney   v.    Seely,   2  Wend.    (N. 

Y.)  481  181,  186 

Boone  Co.  v.  Jones,  54  Iowa  699  304 

314 
Boorstein   v.   Moffatt,   36   U.   S. 

81 374,  391 

Booth  V.  Eighmie,  60  N.  Y.  238.  397 
Booth  V.  Storrs,  75  111.  438..  126,  140 

Boothby  v.  Giles,  68  Me.  160 337 

Bootsman's  Sav.  Bank  v.  John- 
son, 20  Mo.  App.  316 14 

Boppert   V.    Illinois   Surety   Co., 

140  Mo.  App.  675.101, 112c,  443,  446 
Borchsenius    v.    Canuston,    100 

111.  82 377,  397 

Borcigolupi  v.  Phoenix  Bldg.  & 

Const.    Co.    (Cal.    App.    1911), 

112  Pac.  892   144a 

Borden  v.  Gilbert,  13  Wis.  670..  359 
Border  v.  Peary,  20  Ark.  293...  371 
Boreland  v.  Washington  County, 

20  Pa.  St.  150  292 

Borucerrski    v.    Hampden    Real 

Estate  Trust,  210  Mass.  99...  112c 
Boskin    v.    Andrews,    87    N.    Y. 

337 86 


Sec. 
Boskin  V.  Andrews,  53  Hun  (N. 

Y.)   95  86 

Bosley  v,  Taylor,  5  Dana  (Ky.) 

157 197,  203,  209 

Borman  v.  Akeley,  39  Mich.  710.  359 
Bossert  v.  Striker,  142  App.  Div. 

(N.  Y.)  5 3a 

Boston,   etc.,  C!o.   v.  Moore,  119 

Mass.  435  354 

Boston  Heat-Manufactory  Co.  v. 

Messinger,  2  Pick.  (Mass.)  223     72 
Boston     Penny     Sav.     Bank     v. 

Bradford,  181  Mass.  199 130 

Bostwick  V.  Van  Voorhis,  91  N. 

Y.  353.  . .  .87,  142,  287,  292,  293,  296 
Botkin      V.      Kleinschmidt,      21 

Mont.  1 265 

Bottles  V.  Miller,  112  Ind.  584..     91 
Boughton  V.  Bank,  2  Barb.  Ch. 

458 95 

Boulware   v.    Robinson,    8    Tex. 

327  ,   180,  195 

Eowen  v.  Beck,  94  N.  Y.  86 12 

Bowen  v.  Burdick,  3  Clark  (Pa.) 

227  404 

Bowen  v.  Haskin,  45  Miss.  183..  202 
Bower  v.  Jones,  26  S.  D.  414..     35 

39,  126 
Bowers   v.    Bryan   Lumber   Co., 

152  N.  C.  604 446 

Bowers  v.  Fleming,  67  Ind.  541. .  333 
Bowmaker    v.    Moore,    7    Price 

223 66,  414 

Bowmaker    v.    Moore,    3    Price 

214.  .  .  .    414 

Bowman     v.     Blodgett,    2     Met. 

(Mass.)    308    406 

Bowman  Lumber  Co.  v.  Pierson 

(Civ.  App.  1911),  139  S.  W.  618     28 
Bowne  v.  Bank,  45  N.  J.  L.  360, 

361 288,  291,  294 

Bowyer  v.  Hewitt,  2  Gratt.  (Va.) 

193 407 

Boyce  v.  Murphy,  91  Ind.  1 399 

Boyd  v.  Agricultural  Ins.  Co.,  20 

Colo.  App.  28   45 

Boyd  V.  Beville,  91  Tex.  439 178 


Table  of  Cases. 


473 


Sec. 

Boyd  V.  Boyd,  1  Watts  365 23 

Boyd  V.  Commonwealth,  36  Pa. 

St.  355 258 

Boy  den    v.     United     States,     13 

Wall.  (U.  S.)  17 316 

Boyle  V.   St.  John,  28   Hun    (N. 

Y.)   454    249,  258,  267 

Boynton  v.  Phelps,  52  111.  210.   100 

233 

Boynton  v.  Robb,  22  111.  525 233 

Brackebush  v.  Dorsett,  138  111. 

167 233,  236 

Brackett  v.  Rich,  23  Minn.  485. .  353 
Bradbury  v.  Morgan,  1  H.  &  C. 

249 346 

Bradenburg  v.  Flynn,  12  B.  Mon. 

(Ky.)    397    73,  168 

Bradford  v.  Cosey,  5  Barb.    (N. 

Y.)    462   16 

Bradford    v.    Hubbard,    8    Pick. 

(Mass.)  155  130 

Bradley  v.  Burwell,  3  Denio  65.  86 
Bradley  v.  Hooker,  175  Mass.  142  238 
Bradley    v.    Richardson,    23    Vt. 

720   394 

Bradshaw    v.    Cockran,    91    Mo. 

App.  294   381 

Bragg  V.  Patterson,  85  Ala.  233.   160 

163,  193 

Bragg  V.  Shaw,  49  Cal.  131 138 

Bragg  V.  Shaw,  86  111.  78 77 

Bray  v.  State,  78  Ind.  68 59 

Braiden  v.  Mercer,  44  Ohio  St. 

339 265 

Brainard  v.  Jones,  18  N.  Y.  35. .  269 
Brainard  v.  Reynolds,  36  Vt.  614  359 
Braman  v.  Blanchard,  4  Wend. 

(N.  Y.)  435 197 

Braman  v.  Russell,  20  Vt.  205  •  •   382 

383 
Bramble  v.   Ward,   40   Ohio   St. 

267 35,     89 

Branch  Bank  v.  James,  9  Ala.  949  171 
Brand  v.  Whelan,  18  111.  App.  186  383 
Brandcroft    v.    Abbott,    3    Allen 

(Mass.)   524 190 


Sec. 
Brandenburg    v,    Flynn,    12    B. 

Mon.    (Ky.)    39    73,  168 

Branderbocker    v.     Lowell,     32 

Barb.   (N.  Y.)   23   97 

Brandon  v.  Brandon,  3  De  G.  & 

J.  524 273 

Brandrup      v.      Empire      State 

Surety     Co.,     Ill     Minn.     376, 

112c,  112d,  442.  443 
Branger  v.   Butterrick,  30  Wis. 

153  27 

Braugh  v.  Griffith,  lo  Iowa  26..   164 
Braunstein    v.    American  Bond- 
ing &  Trust  Co.,  84  N.  Y.  Supp. 

982 222 

Braxton  v.  Candler,  112  Ga.  459.   433 

Bray  v.  State,  78  Ind.  68 266 

Braynt    v.    Budisell,     4     Heisk. 

(Tenn.)  656 14 

Brazier  v.  Clark,  5  Pick.  (Mass.) 

96 23,  249,  253 

Breed  v.  Hillhouse,  7  Conn.  523.  44 
Brengle  v.  Bushey,  40  Md.  141. .  123 
Brettel  V.  Williams,  4  Exch.  623.     26 

Brewer  v.  State,  6  Lea  198 419 

Brewer  v.  Thorp,  36  Ala.  9 82 

Brewster  v.  Baker,  37  Ind.  260.  37 
Brewster  v.  Silence,  8  N.  Y.  207.  347 
Brick  V.   Banking  Co.,  37  N.  J. 

L.  307 152 

Bridges  v.  Blake,  106  Ind.  332..  36 
Briggs  V.  Downing,  48  Iowa  550.  36 
Briggs  V.  Hinton,  14  Lea  (Tenn.) 

283 ...194a 

Briggs   V.   Latham,   36   Kan.   205     35 

342,  357 
Bright    V,    McKnight,    1    Sneed 

(Tenn.)   164 356 

Brill  V.  Horle,  53  Wis.  537 20 

Brill  Co.  V.  Norton,  &  T.  St.  R. 

Co.,  189  Mass.  431 30 

Brillion  Lumber  Co.  v.  Barnard, 

131  Wis.  284  49,  126,  287 

Brisindine    v.    Martin,    1    Ired. 

(N.  C.)   286   180 

Bristol    V.    Graff,    79    App.    Div. 

(N.  Y.)  426   411 


474 


Table  of  Casis. 


Sec. 
Britchett  v.  People,  1  Gil.  525..  35 
Briton   v.   Fort  Worth,  78   Tex. 

227 310,  314 

Britton  v.  Dierker,  46  Mo.  592..  102 
Britton  v.  Nicolls,  104  U.  S.  766.  336 
Brobst  V.  Killen,  16  Ohio  St.  382  328 
Brock  V.  Hopkins,  5  Neb.  231.  • .  333 
Brockett  v.  Martin,  11  Kan.  378.  334 
Brockway    v.    Petted,    79    Mich. 

620 59 

Brooking  v.  Bank,  83  Ky.  431-  •  •  148 
Brooks  V.  Brooks,  12  Gill.  &  J. 

(Md.)   306 68 

Brooks  V.  Governor,  17  Ala.  806  320 
Brooks  V.  Whitmore,  142  Mass. 

399 209,  260 

Bross  V.  CJommonwealth,  71  Pa. 

St.  262 436 

Brough's  Estate,  71  Pa.  St.  460.  157 
Brown  v.  Beach,  96  Pa.  St.  482. .  163 

Brown  v.  Brown,  47  Mo.  130 341 

Brown  v.  Chambers,  63  Tex.  131  131 
Brown  v.  Chicago,  R.  I.  &  P.  Ry. 

Co.,  76  Neb.  792 93a 

Brown  v.  Davenport,  76  Ga.  799  126 
Brown  v.  First  National  Bank, 

112  Fed.  901  149 

Brown  v.  Howe,  3  Allen  (Mass.) 

528 411 

Brown  v.  Kortz,  37  Iowa  239.  ..  397 
Brown  v.  Lattimore,  17  Cal.  93.  72 
Brown  v.  Lester,   13   Sm.  &  M. 

(Miss.)    392  .    . 333 

Brown  v.  Mason,  170  N.  Y.  584.  .      18 

361 
Brown   v.  Mason,   55  App.   Div. 

(N.  Y.)    395 18,  361 

Brown  v.   Mason,   55  App.   Div. 

(N.  Y.)   395   18 

Brown  v.  Northwestern  Mutual 

Life  Ins.  Co.,  119  Fed.  148. .. .  224 

Brown  v.  People,  26  111.  28 426 

Brown  v.  Ray,  18  N.  H.  102 208 

Brown  v.  State,  23  Kan.  235 247 

Brown     v.     Title    Guaranty     & 

Surety  Co.,  232  Pa.  St.  337.101,  443 


Sec. 
Brown  v.  United  States,  152  Fed. 

984 66 

Brown  v,  Vermont  Mutual  Fire 

Ins.  Co.,  83  Vt.  161 93a 

Brown  v.  Weaver,  76  Miss.  7 326 

Browne  v.  Bank,  45  N.  J.  L.  360.  294 
Browne  v.  Lee,  6  Barn,  and  C. 

689 198 

Brownell    v.    Winnie,    29    N.    Y. 

400 110 

Browning    v.    Hewitt,    61    Ind. 

425 347 

Brownlee    v.     Lowe,     117     Ind. 

420 36 

Brownson   v.   Marsh,   131   Mich. 

35 194 

Brubaker  v.  Okeson,  36  Pa.  St. 

519 114,  147 

Bruce  v.  Laing  (Civ.  App.  1901), 

64  S.  W.  1019 128 

Bruce  v.  United  States,  17  How. 

(U.  S.)  437. 59 

Bruce  Co.  v.  Lambour,  123  La. 

969.  ...   45,  194 

Bruegge  v.  Bedard,  89  Mo.  App. 

543 117 

Bruen  v.  Gillet,  115  N.  Y.  10.  •  •  23 
Brunott  v.  McKee,  6  Watts  &  S 

513 324 

Brunswick  v.  Snow,  73  Me.  179.  337 
Bryan   v.   Henderson,   88   Tenn. 

23 20 

Bryan  v.  Kelly,  85  Ala.  569 322 

Bryan    v.    McDonald,    15    Lea 

(Tenn.)  581 198 

Bryant    v.     Eastman,     7     Cush. 

(Mass.)    Ill 347 

Bryant  v.  Kinyon,  127  Mich.  152  408 
Bryant     v.     Smith,     10     Cush. 

(Mass.)    171.  .  .  .    178 

Bryant   v.    Stout,    16   Ind.   App. 

380 348 

Buchanan    v.    Clark,    10    Gratt. 

164 20 

Buck  V.  De  Rivera,  53  Hun  (N. 

Y.)  367.  .  .  .   362 


Table  of  Cases. 


475 


Sec. 
Bucklen  v.  Huff,  53  Ind.  74.  55,  102 
Buckman  v.  Ruggles,  15  Mass. 

180 304 

Buckner  t.  Stewart,  34  Ala.  529  194a 
Buel  V.  Gorden,  6  Johns.  (N.  Y.) 

126 408 

Buell   V.   Burlingame,   11   Colo. 

164 211 

Buffingham    v.    Smith,    58    Ga. 

341 430 

Buff   Spring   Mercantile   Co.   v. 

White   (Civ.  App.),  90  S.  W. 

710 41 

Bugbee  v.  Kendrickson,  130 

Mass.  437 398 

Building    Association    v.     Cum- 

mings,  45  Ohio  St.  664 53,  298 

Bull  V.  Coe,  77  Cal.  54 134 

Bull  V.  Mahlin,  69  Iowa  408 109 

Bullard   v.   Bank,   18   Wall    (U. 

S.)  589 29 

Bullard  v.  Brown,  74  Vt.  120...  182 
Bullard  v.  Johns,  50  Ala.  382..  384 
Bullen    V.    Dresser,    116     Mass. 

267 406 

Bullen  V.  Morrison,  98  111.  App. 

609 341,  342 

Bullock    V.     Campbell,     9     Gill 

(Md.)   182 176,  211 

Bullowa   V.   Orgo,   57   N.   J.   Eq. 

428 67,  77,  349 

Bunce  v.  Bunce,  65  Iowa  106...  244 

261 
Bunn  V.  Jetmore,  70  Mo.  228...  54 
Burchfield  v.  Haffer,  34  Kan.  42.  183 
Burfeind  v.  People's  Surety  Co. 

of   New  York,   139   App.   Div. 

(N.  Y.)   762   113,  121,  134 

Burgess   v.   Eve,   L.   R.    13    Eq. 

450 88,  292,  367 

Burgess  v.  Young,  97  Me.  386..  243 

Burke  v.  Cruger,  8  Tex.  66 123 

Burleigh  v.  Stott,  8  B.  &  C.  36. .  371 
Burlew  Adm'r  v.  Smith,  68  W. 

Va.  458  Ill 


Sec. 
Burlington  Ins.  Co.  v.  Johnson, 

120   111.  622 75 

Burnap  v.  Bank,  95  N.  Y.  125. . .  18 
Burnell  v.  Minot,  4  Moor  340. 194a 
Burne's  Estate  v.  Fidelity  &  De- 
posit Co.,  96  Mo.  App.  467...  101 
112a,  112b 
Burnet    v.    Henderson,   21    Tex. 

588  60 

Burnham  v.  Kidwell,  113  111.  425  25 
Burns  v.  Bank.  1  Pa.  St.  395...  73 
Burns     v.     Bradford     Kennedy 

Lumber  Co.,  61  Wash.  276 398 

Burns  v.  Parish,  3  B.  Mon.  (Ky.) 

8  181 

Burson  v.  Andes,  83  Va.  445 66 

Burson  v.  Bogart,  49  Colo.  410..  379 
Burson  v.  Bogart,  18  Colo.  App. 

449 374 

Burton  v.  Stewart,  62  Barb.  (N. 

Y.)  194  183 

Bush  V.   Cutchfield,   4   Ohio   St. 

736    290 

Bush  V  Kirkbrde,  131  Ala.  405.235a 
Bush  V.  State,  19  Ind.  App.  523  260 
Bushnell    v.    Bushnell,    77    Wis. 

435    202,  211 

Butcher  v.  Chandler,  14  Ves.  567  186 
Butler   V.   Bukey,   13   Ohio.    St. 

514 20 

Butler  V.  Bissel,  1  Root  (Conn.) 

102 411 

Butler    V.    Butler,     8     W.     Va. 

674    164,  186 

Butler  V.  City  of  Milwaukee,  119 

Wis.  526 301 

Butler  V.  Foster,  14  Ala.  323...  437 
Butler  V.  Sisson,  49  Conn.  580..  253 
Butler  V.  United  States,  21  Wall. 

(U.  S.)  272 51 

Butters   Salt  &  Lumber  Co.   v. 

Vogel,  130  Mich.  33    398 

Byers  v.  Gilmore,  10  Colo.  App. 

79.... 51 

Byers    v.    Hickman    Grain    Co., 

112  Iowa  451.  . 361 


476 


Table  of  Cases. 


C.  Sec. 

Cabot     T.     Haskins,     3     Pick. 

(Mass.)  83 341 

Cabrera    v.    American    Colonial 

Bank,  214  U.  S.  224 362 

Cade  V.  Gordon,  88  Ga.  461.. 418,  419 
Cady  V.  Shepard,  12  Wis.  639...  347 
Cabill     V.     Bigelow,     18     Pick. 

(Mass.)   369   372,  398 

Cabill  Iron   Works  v.   Pember- 

ton,  168  N.  Y.  649  342 

Cabill   Iron  Works  v.   Pember- 

ton,  48  App.  Div.  (N.  Y.)  468. .  342 

Cain  V.  State,  55  Ala.  170   429 

Caldwell  v.  Colgate,  7  Barb.  (N. 

Y.)  253  221 

Caldwell   v.   Commonwealtb,   14 

Gratt.    (Va.)    698   426 

Caldwell  v.  Heitshu,  9  Watts  & 

S.  51    129 

Caldwell    v.    Hurley,    41    Wash. 

296 3 

Caldwell  v.  Sigourney,  19  Conn. 

37 90 

Calhoun  v.  Gray,  150  Mo.  App. 

591    67 

Calkins    v.    Chandler,    36    Mich. 

320    324,  381,  384,  391 

Call  V.  Ruffin,  1  Call  (Va.)  333. .  264 
Calvert    v.    Dock    Co.,    2    Keen. 

638    67,   103,  138 

Calvert  v.  Gordon,  3  Man.  &  Ry. 

124 87,  306,  345 

Calvo  V.  Davies,  73  N.  Y.  211,  217 

11,  12,  116 
Cambria  Iron  Works  v.  Keynes,  56 

Ohio  St.  501   361 

Cambridge  v.  Fifield,  126  Mass. 

428    313 

Camden  v.  Doremus,  3  How.  (U. 

S.)   515   359 

Camden,  City  of  v.  Greenwald, 

65  N.  J.  L.  458 301,  305 

Cameron  v.  Burger  (Oreg.  1912), 

120  Pac.  10. 421 

Camp  V.  Bostwick,  20   Ohio   St. 

337 211 

Camp  V.  Howell,  37  Ga.  312.  .115,  17i 


Sec. 
Campau    t.     Seeley,    30    Mich. 

57    406,  411 

Campbell    v.    American    Bonding 

Co.    (Ala.   1911),  55   So.   306..   244 
Campbell   v.   Baker,   46   Pa.   St. 

243  363 

Campbell    v.     Cable,    2     Sneed 

(Tenn.)  18 328 

Campbell   v.  Floyd,  153   Pa.   St. 

84    20,     21 

Campbell  v.  Harrington,  93  Mo. 

App.  315 224 

Campbell     v.      Lane,     2     Neb. 

(Unoff.)   63    238 

Campbell    v.    Luebben,    90    Neb. 

95 374 

Campbell  v.  State,  18  Ind.  375.  .  431 
Canal  Co.  v.  Vallette,  21  How. 

(U.  S.)   424   28 

Canavan  Bros.  Co.  v.  Bendheim, 

128  N.  Y.  Supp.  435 359,  361 

Cane  v.  Burney,  6  Ala.  780. . . .  .194a 
Garden  v.  McNeil,  21  N.  Y.  336  390 
Cardeza  v.  Bishop,  54  App.  Div. 

(N.  Y.)  116 374 

Carey  v.  State,  34  Md.  105 324 

Carlaftes  v.   Goldmeyer  Co.,   72 

Misc.   R.   75 28,     30 

Carlisle    v.    Campbell,    76    Ala. 

247  378 

Carlton  v.  Krueger,  54  Tex.  Civ. 

App.  48 133 

Carmack    v.    Commonwealth,    5 

Binn.  184   324 

Carmack  v.  Drew,  32  Wash.  236  224 
Carmen  v.  Elledge,  40  Iowa  409  348 
Carmichael     v.     United     States 

Fidelity   &  Guaranty  Co.,   163 

Ala.  320    325 

Carnegie  v.  Morrison,  2  Met.  397  370 
Carpenter  v.  Corinth,  62  Vt.  Ill  337 
Carpenter  v.  Denon,  5  Ala.  710  64 
Carpenter  v.  King,   9  Met. 

(Mass.)  511  95,  148,  171 

Carpenter   v.   Longan,   16   Wall. 

(U.  S.)  271 357 

Carpenter  v.  Minter,  72  Tex. 

370  183,  186 


Table  of  Cases. 


477 


Sec. 
Carr  v.  Smith,  129  N.  C.  232.208,  210 
Carralin  v.  Allen,  112  Iowa  168  377 
Carrick  v.  Morrison,  2  Mauel's 

(Del.)   157,  42  Atl.  447 351 

Carrington  v.  Ford,  4  Cranch  C. 

C.  231   411 

Carroll  v.  Forsyth,  69  111.  127  . .  89 
Carroll  County  Savings  Bank  v. 

Strother,  28  S.  C.  504   366 

Carson  v.  Reid,  137  Cal.  253 361 

Carson,  etc.,  Asso.  v.  Miller,  16 

Nev.  327  138 

Carter  v.  Duggan,  144  Mass.  32  325 
Carter  v.  Fidelity  &  Deposit  Co., 

134  Ala.  369   196,  301,  309 

Carter  v.  Young,  9  Lea.  (Tenn.) 

210 246 

Carter    Bottle    Grocer    Co.     v. 

Clarke  (Civ.  App.  1906),  91  S. 

W.  880 113 

Cartly  v.  Allen,  56  Ala.  198 310 

Carver  v.  Carver,  77  Ind.  498. .  .  62 
Carville  v.  Crane,  5  Hill.  (N.  Y.) 

483  389 

Case  County  v.  American  Exch. 

State  Bank,  11  N.  D.  238 103 

Case    Threshing    Mach.    Co.    v. 

Patterson,  137  Ky.  180   341 

Casey  v.  Gibons,  136  Cal.  368. . .  18 
Cash  V.  People,  32  111.  App.  250  326 
Casker  v.  Harrison,  76  Va.  85..  23 
Casoni  v.  Jerome,  58  N.  Y.  315  321 

141,  287 
Caspen  v.  People,  6  111.  App.  28  320 

Cass  V.  Adams,  3  Ohio  223 224 

Cassady    v.    Trustees,    105    111. 

560    76,  318 

Cassan  v.  Maxwell,  39  Minn.  391  2 
Cathcart    v.    Bryant,    28    Wash. 

31  188 

Cathcart  v.  Foulke,  13  Mo.  561.  .194a 
Catholic  University  of  America 

V.  Morse,  32  App.  D.  C.  195. .  .  66 
100,  285 

Catner  v.  Slater,  50  Me.  112 1 

Catt  V.  Roat,  17  Mass.  229   397 

Cavazos  v.  Trevine,  6  Wall.   (U. 

S.)   773    347 


Sec. 
Cawley  v.  People,  95  111.  249  ...  314 
Cazort  McGehe©  Co.  t.  Dunbar 

(Ark.  1909),  121  S.  W.  270 188 

Central  Investment  Co.  t.  Miles, 

56   Neb.   272    359 

Central   Lumber  Co.   v.   Kelter, 

102  111.  App.  333   30 

Central  Trans.  Co.  v.  Pullman's 

Car  Co.,  139  U.  S.  24 30 

Central  Trust  Co.  v.  Bank,  101 

U.  S.  68 357 

Chadwick    v.    Eastman,    53    Me. 

12    55,  110 

Chaffee     v.     Jones,     19     Pick. 

(Mass.)  260 3,  7,  194,  196,  203 

Chaffin  V.  Campbell,  4  Sneed  184  207 
Chamberlain  v.  Goodfrey,  36  Vt. 

380 321 

Chamberlain  Banking  House  t. 

Woolsey,  60  Neb.  516    323 

Chambers  v.  Cochran,  18  Iowa 

159 64 

Chambers    v.    Prewitt,    172    111. 

615    151,  157 

Chambless  v.  State,  20  Tex,  197  418 
Champion  v.  Doty,  31  Wis.  190  388 
Champion  v.  Griffith,  13  Ohio  228  347 
Champion  v.  Noyes,  2  Mass.  481  408 
Champion  Ice  Mfg.  &  Cold  Stor- 
age Ck).  V.  American  Bonding 

&  Trust  Co.,  115  Ky.  863 443 

Champlain  Const.  Co.  v.  O'Brien 

(  U.  S.  C.  C),  117  Fed.  271..   788 

381 
Chandler  v.  Brainard,   14   Pick. 

(Mass.)  285 195 

Chandler  v.  Higgins,  109  111.  602  188 
Chandler  v.  Kyle  (Ala.  1912),  57 

So.  475   21 

Chandler     v.     Rutherford,     101 

Fed.  774.  .  .   323 

Chandler  v.  Westfall,  3  Tex.  477  347 
Chapin     v.     Lapham,     20     Pick. 

(Mass.)  467.  .  .  380 

Chapin   v.    Livermore,    13    Gray 

(Mass.)  561 263 

Chapin  v.  Waters,  110  Mass.  195  251 


478 


Table  of  Cases. 


Sec. 
Chaplin    v.    Atkinson,    45    Ark. 

67 374,  389,  392,  396 

Chapline  v.  Robertson,  44  Ark. 

202    214 

Chapman  v.  Beardsley,  31  Conn. 

115 11 

Chapman    v.    Collins,    12    Cush. 

(Mass.)    163    94 

Chapman    v.    Garber,    46    Neb. 

16    8,  204 

Chapman  v.  Morrill,  20  Cal.  130  22 
Chapman  v.  Pendleton,  26  R.  I. 

573 3 

Chapman  v.  Stucky,  22  111.  App. 

31 217 

Chappel  V.  Spencer,  23  Barb.  (N'. 

Y.)  584  109 

Charles  v.  Hoskins,  11  Iowa  329  324 
Charles  v.  Hoskins,  14  Ohio  471  65 
Charlotte  v.  Gow,  59  Ga.  685...  127 
Charman  v.  McLane,  1  Or.  339 . .  26 
Charter  v.  Beckett,  7  Term.  R. 

201 39 

Chase  v.  Beraud,  29  Cal.  138 228 

Chase  v.  Day,  17  Johns.  114 398 

Chase  v.  Hathorn,  61  Me.  505.54,  78 
Chase  v.  People,  2  Colo.  481   . .   423 

428,  434 
Chase  v.  Wright,  116  Iowa  555. .  265 
Chatfield   v.  Campbell,  35  Misc. 

R.  (N.  Y.)  355 337 

Cheboygan    Co.    v.    Erratt,    110 

Mich.  156    301,  311 

Cheesebrough     v.     Millard,      1 

Johns.  Ch.  (N.  Y.)  409 165 

Cheetham  v.  Ward,  1  Bos.  &  P. 

630 251 

Chelmesford  Co.  v.  Demorest,  7 

Gray  (Mass.)  1 70,  305 

Chenowith  v.  Chamberlin,   6   B. 

Mon.  60    26 

Cherry  v.  Wilson,  78  N.  C.  164. .  203 
Chester  v.  Broderick,  131  N.  T. 

549 229 

Chester,  Village  of  v.  Leonard, 

68  Conn.  495  138 

Chicago  V.  Gage,  95  111.  593  ..  51 
56,  304,  315,  318 


Sec. 
Chicago  &  M.  Telegraph  Co.  v. 

Type  Telegraph  Co.,   137   111. 

App.  131   28,     30 

Chicago,  etc..  Bank  v.  Black,  72 

111.   App.   147    363 

Chicago,  etc..  Coal  Co.  v.  Lid- 
dell,  69   111.   639    379 

Chicago,  etc.,  R.  R.  Co.  v.  Bar- 

lett,  120  111.  602 2,  300,  317 

Chicago     Crayon     Co.     v.     Mc- 

Namara,  136  Mo.  App.  460 67 

Chicago  Crayon  Co.  v.  Rodgers 

(Okla.  1911),  119  Pac.  630 144a 

Chicago  Crayon  Co.  v.  Slattery, 

67  Misc.  (N.  Y.)  R.  148 66 

Chicago  Sash,  Door  &  B.  Mfg. 

Co.   V.   Haven,   195   lU.   474..     35 

41,  342 
Chicago  Trust  &  Sav.  Bank  v. 

Nordgren,  157   111.  663    17 

Chickasaw  County  v.  Pitcher,  36 

Iowa  593   122 

Child  V.  Powder  Works,  44  N.  H. 

354 183 

Childers   v.    State,   25   Tex.   Cr. 

App.  658 431 

Childs  V.  Smith,  78  Ind.  425 412 

Chilton  V.  Chapman,  13  Mo.  470  208 
Chitwood    V.    Hatfield,    136    Mo. 

App.   688    36 

Choate  v.  Arrington,  116  Mass. 

552    9,  203,  247,  252 

Choate  v.  Hoogstraat,  105  Fed. 

713  381 

Choteau  v.  Jones,  11  111.  300...  166 
174,  193,  301 
Chrisman  v.  Harman,  29  Gratt. 

(Va.)  494  154 

Christian  v.  Keen,  80  Va.  369..  102 
Christiansen    v.    Mendham,    28 

Misc.  R.  765   23: 

Christiansen    v.    Mendham,    45 

App.  Div.   (N.  Y.)   554   238 

Christner  v.  Brown,  16  Iowa  130  18 
Church  V.  Baker,  18  Colo.  App. 

369 235a 

Church  V.  Howard,  17  Hun    (N. 

Y.)   5  109 


Table  of  Cases. 


47^ 


Sec. 

Church  T.  Maloy,  70  N.  Y.  63 115 

Church,  In  re,  16  R.  I.  231 157 

Churchill  v.  Bradley,  58  Vt.  403     37 

Chute  V.  Pattee,  37  Me.  102 46 

Cilley    V.    Dearborn,    75    N.    H. 

563 144a 

Cincinnati,    etc.,    R.    R.    Co.    v. 

Morrell,  11  Heisk.  715 282 

Citizens'  Bank  v.  Elliott,  9  Kan. 

App.   797    99 

Citizens'  Loan  Asso.  v.  Nugent, 

40  N.  J.  L.  215   305 

Citizens'  Nat.  Bank  v.  Burch,  145 

N.  C.  316  67,     77 

Citizens'  Stock  Bank  v.  George, 

150  Mo.  1  144 

Citizens'  St.  Ry.  Co.  v.  Albright, 

14  Ind.  App.  433   66 

Citizens  Trust  &  G.   Co.  v.   Ohio 

V.  T.  G.,  128  S.  W.  317   237 

City  Bank  v.  Hopson,  53  Conn. 

455    340 

City  Board  v.  Bateman,  102  N.  C. 

52    310 

City  Nat.  Bank  v.  Dudgeon,  65 

111.  10  154 

City  Nat.  Bank  v.  Phelps,  86  N. 

Y.  484   348 

City    of    Madison    v.    American 

Sanitary  Engineering  Co.,  118 

Wis.   480    67a 

City  of  New  Haven  v.  Eastern 

Pav.  Brick  Co.,  78  Conn.  689-   442 
City  of  New  York  v.  Seely-Tay- 

lor  Co.,  149  App.  Div.  (N.  Y.) 

98 35 

City  of  Richmond  v.  Byrne,  146 

Mo.  App.  481 67 

City  of — see  name  of  city. 

City   Sav.   Bank   v.   Hopson,   53 

Conn.   453    349 

City  Trust,  Safe  Deposit  &  Sur- 
ety Co.  V.  Lee,  204  111.  69 284 

Claffin    V.     Ostrom,     54     N.     Y. 

581    82,  357 

Clagett  V.  Ward,  5  Cranch  C.  C. 

669    408 

31 


Sec. 
Clancy  v.  Kenworthy,  74  Iowa 

740  323 

Clapp  V.  Rice,  15  Gray  (Mass.) 

557    133,  187 

Clapp  V.  Rice,  13  Gray   (Mass.) 

406 210 

Clark  V.  Bassett,  19  Mo.  39 14 

Clark  V.  Birley,  41  Ch.  Div.  422  113 

123 

Clark  V.  Bush,  3  Cow.  151 74 

Clark   V.   Carrington,   7   Cranch 

(U.  S.)   308   321 

Clark  V.  Devlin,  3  Bos.  &  Pul. 

363    16,     3& 

Clark  V.  Gordon,  121  Mass.  330     82 

Clark  V.  Lamb,  78  Ala.  406 328 

Clark  V.  Mallory,  185  111.  227...   133 

36» 
Clark   V.   Mallory,   83    111.   App. 

488    369,  394 

Clark  V.  Merriam,  25  Conn.  576  347 
Clark    V.    Osborn,    41    Ohio    St. 

28 146 

Clark    T.    Remington,    11    Mete. 

361  352- 

Clark  V.  Russel,  3  Watts   (Pa.) 

213    44,  341 

Clark   V.   Surety   Company,   171 

111.  235   247 

Clark  V.  Wilkinson,  59  Wis.  543  260 

303 
Clark  V.  Williams,  61  Minn.  12  51 
Clark    V.    Withers,    2    Ld.    Ray. 

1074 328 

Clark  V.  West,  5  Ala.  117 253 

Clarkson  v.  Commonwealth,  2  J. 

J.  Marsh  19 258 

Clason  V.  Morris,  10  Johns.   (N. 

Y.)   524  14 

Clay    V.    Edgeton,    19    Ohio    St. 

549    129,  349 

Clay  V.  Freeman,  74  Miss.  816..  151 
Clayton  v.  Grayson,  4  Nev.  &  M. 

602    347 

Clayton's  Case,  1  Meriv.  572 99 

Clemens  v.  Prout,  3  Stew.  &  P. 

(Ala.)  345 181 


480 


Table  of  Cases. 


Seo. 
Clements  v.  Langley,  2  Nev.  & 

M.  269 212 

Clermont  Bank  v.  Wood,  10  Vt. 

582 58 

Clifford  V.  Luhring,  69  111.  401  377 
381,  391,  392 
Clifton  V.  Wynne,  80  N.  C.  145. .  337 
Clinton  County  v.  Smith  (Mo.  S. 

C.  1911),  141  S.  W.  1091 134 

Clippinger  v.  Cress,  2  Watts.  45  121 
Clopton   V.   Goodbar    (Tex.   Civ. 

App.  1910),  55  S.  W.  972 438 

Clopton  V.  Hall,  51  Miss.  482..  36 
Clossen  v.  Bellman,  161  Ind.  610  348 
Closson  V.   Morrison,   47   N.   H. 

482 323 

Clough  V.  Woraham,  32  Tex.  Civ. 

App.  187 301 

Cluff  V.  Day,  124  N.  Y.  460 255 

Clune  V.  Ford,  55  Hun   (N.  Y.) 

479    42 

Clymer  v.  DeYoung,  54  Pa.  St. 

118 384 

Coates  V.  Coates,  33  Beavan  249  137 
Cobb  V.  Haynes,  8  B.  Mon.  137. .  209 
Coburn  v.   Wheelock,   34   N.   Y. 

440 3 

Cochran  v.  Baker,  34  Oreg.  551  138 
Cocking  v.  Wade,  87  Md.  529..  326 
Cocks  v.  Barker,  49  N.  Y.  107.  .     50 

Coe  v.  Cassidy,  72  N.  Y.  133 81 

Coe  V.  Vogdes,  71  Pa.  St.  383 ...  •     87 

Coffee  V.  Tevis,  17  Cal.  239 194a 

Coffin  V.  McLean,  SO  N.  Y.  560  .  .   144 

Coffin    V.    University,    92    Ind. 

337   41 

Coffman  v.  Hopkins,  75  Va.  645  163 
Cohn  V.  Spitzer,  129  N.  Y.  Supp. 

104   113 

Colburn  v.  Averill,  30  Me.  310..   347 

Colburn  v.  State,  47  Ind.  310 261 

Coldwell    V.    Commonwealth,   14 

Gratt.  (Va.)  698  428 

Cole  V.  Bank,  60  Ind.  350 348 

Cole  V.  Crawford,  69  Tex.  124..  324 
Cole    V.    Hutchinson,    34    Minn. 

410    "98 


Sec. 

Cole  V.  Justice,  8  Ala.  793 144 

Cole  V.  Pennoyer,  14  III.  158...  24 
Coleman  v.  Eaker,  23  Ky.  Law 

Rep.  513    501 

CoUman     v.     Railroad    Co.,     10 

Beav.  1  28 

Coleraine     v.     Bell,     9     Mete. 

(Mass.)   499   307,  337 

Coles  V.  Pack,  L.  R.  5  C.  P.  65. .  43 
Colgrove  v.  Tallman,  67  N.  Y.  90  21 
Collins  V.  Gilbert,  94  U.  S.  753.  .  347 
Collins  V.  McDaniel,  66  Ga.  203  333 
Colter   V.    Morgan,    12    B.    Mon. 

(Ky.)  278 313 

Coltrill  V.  Krum,  100  Mo.  405..  126 
Columbia    Ave.     Trust    Co.     v. 

King,  227  Pa.  St.  308 51 

Columbia  Co.  v.  Massie,  31  Oreg. 

292  310 

Comegys  v.  Cox,  1  Stew.  (Ala.) 

262  228 

Commercial    &    Farmers'    Nat. 

Bank  v.  McCormick 364 

Commercial   Bank   v.   Bank,   11 

Ohio  444 131 

Commercial   Bank  v.   Provident 

Institution,  59  Kan.  361 357 

Commercial   Exchange  Bank  v. 

McLeod,  65  Iowa  665    323 

Commercial    Fire    Ins.    Co.    v. 

Morris,  105  Ala.  498 382 

Commercial    National    Bank    v. 

Goodrich,  107  Wis.  574 374 

Commercial  Nat.  Bank  v.  Kirk- 
wood,  172  111.  563  13,  563 

Commissioners  v.   O'Rourke,  34 

Hun  (N.  Y.)  349 63 

Commissioner    of     Banking     v. 

Chelsea  Sav.  Bank,  161  Mich. 

704    67 

Commissioner    of     Banking    v. 

Chelsea     Savings    Bank,     161 

Mich.  691  67 

Commonwealth      v.      American 

Bonding  &  Trust  Co.,  16   Pa. 

Super.  Ct.  570   261 


Table  of  Cases. 


481 


Sec. 
Oommonwealth     v.     Austin,     11 

Gray   (Mass.)   330   423 

Commonwealth   v.    Barrows,    46 

Me.  497 321 

Commonwealth   v.    Bracken,    17 

'KyTLaw.  Rep.  785 65,  265 

Commonwealth  v.  Brand,  1  Bush 

(Ky.)   59   424 

Commonwealth    v.    Bronson,    14 

B.  Mon.  361  424 

Commonwealth  v.  Bryan,  8  Serg. 

&  R.   128    256 

Commonwealth  v.  Buhl,  199  Pa. 

St.  40    243 

Commonwealth    v.    City    Trust, 

Safe  Deposit  &  Surety  Co.,  224 

Pa.  St.  223 74 

Commonwealth  v.  Cohen,  22  Pa.  . 

Super.  Ct.  55    434 

Commonwealth    v.    Coleman,    2 

(Ky.)    382    421,   424,  436 

Commonwealth   v.  Conly,  3   Pa. 

St.  372    316 

Commonwealth    v.    Contner,    18 

Pa.  St.  439 325 

Commonwealth    v.    Cox,    36    Pa. 

St.  442   203,  260 

Commonwealth  v.  Fry,  4  W.  Va. 

721  325 

Commonwealth    v.    Gould,     118 

Mass.  300   273,  274 

Commonwealth    v.    Hargis,    137 

Ky.  1  420 

Commonwealth    v.    Holmes,    25 

Gratt.    (Va.)    771    312 

Commonwealth    v.     Julius,    173 

Pa.  St.  322 265 

Commonwealth   v.   Junison,  205 

Pa.  St.  367 ; 337 

Commonwealth  v.  Kendig,  2  Pa. 

St.  448   47,  334 

Commonwealth    v.    Knettle,    182 

Pa.  St.  176 337 

Commonwealth  v.  Lentz,  106  Pa. 

St.  643    325 

Commonwealth  v.  Longenecker, 

1  Chester  County  Rep.    (Pa.) 

202 250 

31 


Sec. 
Commonwealth        v.        McClure 

(Ky.),  49  S.  W.  789 337 

Commonwealth  v.  Meeser,  19  Pa. 

Super.  Ct.  1 433 

Commonwealth  v.  Miller,  8  Serg. 

&   R.    (Pa.)    452    64,  95 

Commonwealth  v.  Moren,  25  Ky. 

Law  Rep.  1635 323 

Commonwealth  v.  Oblenden,  135 

Pa.  St.  530 434 

Commonwealth  v.  Oblender,  135 

Pa.  St.   536    436 

Commonwealth    v.    Overby,    80 

Ky.  208    414,  424 

Commonwealth  v.  Picey,  125  Pa. 

St.  542    263 

Commonwealth    v.     Ramsey,    2 

Duv.    (Ky.)    385    418 

Commonwealth    v.    Real    Estate 

Title    &    Trust    Co.,     22    Pa. 

Super.   Ct.   235    431,  434 

Commonwealth    v.     Roberts,    4 

Met.  (Ky.)  220 431 

Commonwealth    v.     Roberts,     1 

Duv.  (Ky.)  199 431 

Commonwealth    v.    Rhoads,    37 

Pa.  St.  60    265 

Commonwealth   v.  Rutland,   119 

Mass.  317 431 

Commonwealth  v.  Schick,  61  Pa. 

St.  495    418 

Commonwealth     v.     Skiggs,     3 

Bush  (Ky.)    19   431 

Commonwealth    v.    Slocum,    14 

Gray   395    431 

Commonwealth  v.  Stockton,  5  T. 

B.  Mon.  192 324 

Commonwealth  v.  Stone,  24  Ky. 

Law  Rep.  1297   323 

Commonwealth  v.   Stub,   11   Pa. 

St.   150    242 

Commonwealth  v.  Terry,  2  Duv. 

(Ky.)  383   431 

Commonwealth  v.  Tilton,  23  Ky. 

Law  Rep.  753   325,  326 

Commonwealth  v.  Toms,  45  Pa. 

St.    408    75.  310 


Table  oi'  Cases. 


Sec. 
Ck>mmonwealth     v.     Torney,     3 

Watts   &   S.    353    74 

Commonwealth    v.    Webster,     1 

Bush    (Ky.)    616    424,426 

Commonwealth    v.    Wenrick,    8 

Watts  (Pa.)    159    242 

Commonwealth    v.    Wolbert,     6 

Binn.  (Pa.)   292   314 

Comstock   V.    Drohan,   71    N.    Y. 

13  11 

Comstock  V.  Gage,  91  111.  328..     51 

76,  142 
Comstock   Castle    Stove    Co.    v. 

Caulfield  (Neb.),  95  N.  W.  783  325 
Concord  v.   Pillsbury,  33   N.   H. 

310  144 

Condit  V.  Winslow,  105  Ind.  142  251 
Congdon  v.  Read,  7  R.  I.  576...  354 
Conklin  v.  Conklin,  54  Ind.  289  146 

Conley  v.  Buck,  100  Ga.  187 208 

Conn  V.  State  ex  rel.  Stutsman, 

125  Ind.  513   112 

Connecticut  Mut.  L.  Ins.  Co.  v. 

Scott,  81  Ky.  540   83,  127 

Connell  v.  Crawford  Co.,  59  Pa. 

St.  196    337 

Connell  v.  McCowan,  81  111.  285  20 
Connell  v.  McCowan,  53  111.  363  157 
Connelly  v.  Bourg,  16  La.  Ann. 

108    163 

Connelly   v.    American   Bonding 

&  Trust  Co.,  24  Ky.  Law  Rep. 

714    301,  335 

Conner  v.  Reeves,  103  N.  Y.  527  65 
Connolly  v.  Dolan,  22  R.  I.  60.  . .  166 
Connor   v.   Hodges,   7   Ga.    App. 

153 144a 

Conover  v.  Hill,  76  111.  342 201 

Conover  v.  Stillwell,  34  N.  J.  L. 

54  341 

Conrad  v.  Clark,  106  Minn.  430  396 
Consalus,  In  re,  95  N.  Y.  340...  252 
Consolidated   Portrait  &  Frame 

Co.  V.  Claxton,  1  Ga.  App.  809  3a 
Constant  v.  Matteson,  22  111.  546  189 
Constantine  v.  Kalamazoo  Beet 

Sugar  Co.,   132  Mich.   480 30 


Sec. 
C!onverse    v.    United    States,    21 

How.  463   312 

Cook    V.    American    Tubing    & 

Webbing  Co.,  28  R.  I.  41  ..28.  30 
Cook  V.  Berry,  193  Pa.  St.  377.  .  11 
Cook  V.  Caroway,  29  Kan.  41..     27 

Cook  V.  King,  7  111.  App.  549 224 

Cook  V.  Spencer   (Mo.  App.  1909), 

122  S.  W.  34   224 

Cooke  V.  Orme,  37  111.  186.. 348,  355 
Cookman   v.    Stoddard,    132   App. 

Div.    (N.  Y.)   485   243 

Coombs  V.  Harford,  99  Me.  426     70 

Coons  V.  People,  76  111.  391 314 

Cooper  V.  Chamblee,  114  Ga.  116  202 
Cooper  V.   Joel,  1  Deg.  F.  &  J. 

240    366 

Cooper    V.    National    Fertilizer 

Co.,  132  Ga.  529    193 

Cooper  V.  Parker  (Ala.  1912),  57 

So.  472  182 

Cooper  V.  People,  28  Colo.  87..   329 

331 
Cooper  V.  Rivers,  95  Miss.  423  •  •  437 
Coots    V.   Farnsworth,   61   Mich. 

497  94 

Copis   V.    Middleton,   1   Turn.   & 

Russ.  224    153,  178 

Corielle  v.  Allen,  13  Iowa  189..  115 
Corkins  v.  Collins,  16  Mich.  478  392 

Corlies  v.  Estes,  31  Vt.  653 117 

Corlis   V.   Fleming,   30   N.   J.    L. 

349   90 

Cormon  v.  Elledge,  40  Iowa  400  355 
Corn    Exchange   National   Bank 

of  Chicago  v.  Curtiss,  146  111. 

App.  489 356 

Cornise  v.  Kellogg,  20  111.  11 15 

Cornthwaite  v.  Bank,  57  Ind.  268  246 
Corrigan  v.  Foster,  51  Ohio  St. 

225   247 

Corydon    Deposit    Bank    v.    Mc- 

Clure,  140  Ky.  149 122 

Coster  V.  IMayor,  43  N.  Y.  399..  358 
Coster  V.  Watson,  15  Johns.  (N. 

Y.)   535   27 


Table  of  Cases. 


483 


Sec. 
Cothren     v.     Connaughton,     24 

Wis.    134    27 

Cotton    V.    Alexander,    32    Kan. 

339  371 

Cotton  V.  Simpson,  8  Ad.  &  EI. 

136   110 

Couch  V.  Terry,  12  Allen,  227. ..  196 
Coughran    v.    Bigelow,    9    Utah 

260 67 

Coulter  V.   Richmond,   59    N.   Y. 

478 347 

Coulthart  v.  Clementson,  5  Q.  B. 

Div.  42 306,  346,  367,  368 

County  V.  Wilhite,  29  Mo.  App. 

459 56 

County  Commissioners  of  Cal- 
vert County  V.  Hellen,  72  Md. 

603    34 

County  of  Harlan  v.  Whitney,  65 

Neb.  105  41 

County   of   Pine    v.    Willard,   39 

Minn.  125 69 

Courtis      V.      Dennis,      7      Met. 

(Mass.)  510 4 

Court  Vesper  No.  69,  Foresters 

of   America   v.    Fries,    22    Pa. 

Super.  Ct.  250 35,  141 

Covey  V.  Bostwick,  20  Ohio  St. 

337    194a,  202 

Covey  V.  Neff,  63  Ind.  391  ..174,  182 
Covey  V.   Schiesswohl,   50   Colo. 

68    67,  112 

Cowdery  v.  Hahn,  105  Wis.  455. .  138 
Cowdin  V.  Gottgetreu,  55  N.  Y. 

650 398 

Cowell  V.  Edwards,  2  Bos.  &  P. 

268   196 

Cowen  V.  Culbert,  3  Ga.  239 64 

Cowles  V.  Peck,  55  Conn.  251.  .4,  350 
Cowles  V.  Townsend,  37  Ala.  77.  370 
Cowles  V.  United  States  Fidelity 

&     Guaranty    Co.,     32    Wash. 

120 112d 

Cox  V.  Hartranft,  154  Pa.  St.  457  238 
Cox  V.  Highley,  100  Pa.  St.  252.  .  404 
Cox  V.  Jeffries,  73  Mo.  App.  412  146 
Cox  V.  Peltier,  159  Ind.  355 398 


Sec. 

Cox  V.  Reed,  27  111.  434 195 

Cox  V.  Sargent,  10  Colo.  App.  1  238 
Cozzens  v.  Brick  Co.,  166  111.  213  351 
Craddock    v.    Turner,    6    Leigh. 

(Va.)   116   65 

Craft  V.  Kendrick,  39  Fla.  90..   377, 

384,  396 
Craft  V.  Mott,  5  Barb.  (N.  Y.)  305  159 
Craig   V.   Craig,   5   Rawle    (Pa.) 

91 175,  194 

Craig     V.     Governor,     3     Cold. 

(Tenn.)    244    332 

Craig  V.  Parks,  40  N.  Y.  181 357 

Craighead  v.  Peterson,  72  N.  Y. 

279    447 

Cramer  v.  Redman,  10  Wyo.  328  208 

Cramer  v.  Tittle,  72  Cal.  12 34 

Crandall  v.  First  National  Bank 

of  Auburn,  61  Ind.  349  110 

Crane  v.  Ailing,  15  N.  J.  L.  423.  .  294 
Cranmer  v.  MeSwords,  26  W.  Va. 

412 183 

Cranson  v.  Wilsey,  71  Mich.  356  255 
Crawford  v.  Beall,  21  Md.  208..  94 
Crawford  v.  Edison,  45  Ohio  St. 

239 337,  381,  391,  393 

Crawford  v.  Gaulden,  33  Ga.  173  131 
Crawford  v.  Howard,  9  Ga.  314. .  309 
Crawford  v.  Owens,  79  S.  W.  59  51 
Crawford   v.    Richeson,    101    111. 

351    18,  338 

Crawford  v.  Stirling,  4  Esp.  207  26: 
Crawford     v.     Turk,     24     Gratt. 

(Va.)  176   65. 

Crawn  v.  Commonwealth,  84  Va. 

282   314 

Craythorne     v.     Swinburne,     16 

Ves.  160 7,  10,  194,  203 

Cressej'    v.    Gierman,    7    Minn. 

398   334 

Crim  V.  Fitch,  53  Ind.  214 395 

Crim  V.  Fleming,  101  Ind.  154..  132. 
Cripps  V.  Hartnoll,  4  Best.  &  S. 

414    ..~ 383,   415,  416 

Crisfield  v.  Murdock,  127  N.  Y. 

315   209 

Crisfield  v.  State,  55  Md   192 163. 


484 


Table  of  Casks. 


Sec. 
Crist    V.    Buiiingham,    62    Barb. 

(N.  Y.)  351 66,  356 

Crittenden    v.    Fislier,    46    Mich. 

70 348,  352,  354 

Croft  V.  Bunster,  9  Wis.  503 357 

Croft  V.  Ins.  Co.,  40  W.  Va.  508.  .   400 

Croft  V.  Isham,  13  Conn.  36 355 

Croft  V.  Moore,  9  Watts  451 166 

Crook  V.  Hudson,  4  Lea  (Tenn.) 

448    260 

Crook  V.  Scott,  65  App.  Div.  (N. 

Y.)   139   381 

Crooks   V.   Tully,   50   Cal.   254..   347 

349 
■Crosby  v.  Wyatt,  23  Me.  156.  .  .3,  173 
Crosby  v.  Wyatt,  10  N.  H.  318. . .  117 
'Cross    V.    Petree,    10    B.    Hon. 

(Ky.)   413 370 

Cross  V.  Wood,  30  Ind.  378 115 

Crossly  v.  Stanley,  112  Iowa  24     97 
Crossman  v.  Woheleben,  90  111. 

537    46,     47 

Crouch  V.  State,  25  Tex.  755 431 

Crump   V.    Case  Threshing   Ma- 
chine Co.  (Ky.),  123  S.  W.  333  361 
Crystal    Lake   Tp.    v.    Hill,    109 

Mich.  246  52 

Culbertson  v.  Wilcox,  11  Wash. 

522  171 

€ulliford   v.   Walser,    158    N.   Y. 

65    73,    229,    405,  410 

Culliman   v.  Bowker,   180   N.  Y. 

93 447 

Cullinan  v.  Bowker,  88  App.  Div. 

(N.  Y.)   170   447 

Cullom  V.   Dolloff,  94   111.   330..   308 

329,  330 
Culver  V.  Real  Estate  Co.,  91  Pa. 

St.  367 376,  28,     30 

Cumberland  v.   Pemiell,   69   Me. 

35 316 

Cumberland    Building    &    Loan 

Ass'n  V.  Gibbs,  119  Mich.  318  127 
Cumberland    Glass    Mfg.    Co.    v. 

Wheaton,  208  Mass.  425.. 348,  352 
353,  356 
Cummings  v.  Hockley,  8  Johns. 

(N.    Y.)    202    180,  195 


Sec. 
Cummings  v.  Little,  45  Me.  183  130 

171 
Cummings  v.  Mugge,  94  111.  186  232 
Cunningham         v.         Clarkson, 

Wright  (Ohio)  ,217 406 

Cunningham   v.   Finch,    63   Neb. 

189    235a 

Cunningham  v.  Wrenn,  23  111.  64  129 
Cuppy  V.  Coffman,  82  Iowa  214  Z7 
Currier  v.  Baker,  51  N.  H.  613. .  196 
Currier  v.  Fellows,  27  N.  H.  366  198 

Curry  V.  Hale,  15  W.  Va.  867 11 

Curry  v.  Morrison,  40  Pa.  Super. 

Ct.  301 38 

Curtis  V.  Bank,  39  Ohio  579 246 

Curtis  V.  Brown,  5  Cush.  (Mass.) 

488 392 

Curtis  V.  United  States,  100  U.  S. 

119   76 

Cutler    v.     Dickinson,     8     Pick. 

(Mass.)  387 60 

Cutler  V.  Roberts,  7  Neb.  4 .  .  51,     52 

D. 
Dahlman    v.    Hammel,    45    Wis. 

466    342 

Dair  v.  United  States,  16  Wall. 

(U.   S.)    1    50,  315 

Dale  v.  Commonwealth,  101  Ky. 

612  420 

Daley  v.  Commonwealth,  75  Pa. 

St.  331    71 

Dalton    v.    Barnard,    150    Mass. 

473.   .   .  .    214 

Damb  v.  Hoffman,  3  E.  D.  Smith 

361   Ill 

Dane  v.  Gilmore,  51  Me.  547 321 

Daneri  v.  Gazzola,  139  Cal.  416.  .  113 
Danforth  v.  Semple,  73  111.  170  115 
Daniel  v.  McRae,  2  Hawks    (N. 

C.)   590   206 

Daniels  v.  Gower,  54  Iowa  319 . .  51 
Daniels  v.  Tearney,  12  Otto   (U. 

S.)   415   59a 

Danker    v.    Atwood,    119    Mass. 

146    53,   56,  298 

Darnell  v.  Dolan  (Tex.  Civ.  App. 

1910),  132  S.  W.  857 356,  364 

Darst  v.  Bates,  95  111.  493.  .  .390,  397 


Table  of  Cases. 


485 


Sec 
Dart  V.  Sherwood,  7  Wis.  446..  58 
Davenport  v.  Olmstead,  43  Conn. 

67    265 

Davenport  v.  Richards,  16  Conn. 

310 252 

Davidson   v.   Taylor,    12   Wheat. 

(U.    S.)    604    412 

Davies   v.   Humphreys,   6   Mees. 

&  W.  153   176,  192,  211 

Davis  V.  Baker,  71  Ga.  33 15 

Davis  V.  Bauer,  41  Ohio  St.  257.194a 
Davis  V.  Blackwell,   5   111.   App. 

32 26 

Davis  V.  Clark,  58  Kan.  454.. 90,  91 
Davis  V.  Emerson,  17  Me.  84.196,  200 
Davis  V.  Graham,  29  Iowa  514.  .  114 
Davis  V.  Hooper,  33  Miss.  173..  253 
Davis  V.  Maynard,  9  Mass.  242 .  .  64 
Davis    V.     Patrick,     141     U.     S. 

479.   .   .   .    377.  382 

Davis    V.    People.    1    Gil.     (111.) 

409.  .  .  . 227 

Davis   V.    Pullman   Co.,   34   Tex. 

Civ.  App.  621.  .   438,  440 

Davis  V.  Railroad  Co.,  131  Mass. 

258.  ...   30 

Davis  V.  Scott,  15  Abb.  Pr.   (N. 

Y.)    127.  ...    •  -   404 

Davis  V.  Shed,  15  Mass.  6 243 

Davis  V.  State,  43  Ind.  103 376 

Davis  V.  Stevens,  10  N.  H.  186  •  .  178 
Davis  V.  Stokes  County,  74  N.  C. 

374.     ..  .    190 

Davis  V.  Stotts,  43  Ind.  103 92 

Davis  V.  Stout,  126  Ind.  12 114 

Davis     V.     Wells,     104     U.     S. 

159.  ...    339,  348,  352,  356 

Davis  Belau  &  Co.  v.  National 

Surety  Co.,  139  Cal.  223...    .     35 
Davis  Sewing  Mach.  Co.  v.  Mc- 

Ginnis,  45  Iowa  538 362 

Davis  Sewing  Mach.  Co.  v.  Rich- 
ards,  115  U.   S.   524    348 

Davy  V.  Pendergrass,  5  Barn.  & 

Al.  187 117 

Dawson    v.    Bank,    5    Pike    283, 
298.  ... 99 


Sec. 
Dawson  v.  Baum,  3  Wash.  Tex. 

464 219,  231 

Dawson  v.  Dawson,  25  Ohio  St. 

443 258 

Dawson  v.  Raynes,  2  Russ.  466.  276 
Dawson  v.  State,  38  Ohio  St.  1.  313 
Day     v.     Ramey,     40     Ohio     St. 

446.  .  .  .    132,  171 

Dean  v.  Commonwealth,  1  Bush 

(Ky.)   20.  .  .    437 

Dean    v.    Newhall,    2    Term.    R. 

1S6..   .    . 294 

Dean  v.  Parker,  17  Mass.  591..  406 
Dean  v.  Rice,  63  Kan.  691....-  116 
Dean  v.  Walker,  107  111.  540...  358 
Dearborn   v.    Sawyer,    59    N.   H. 

95.  .   .  . 353 

Deardorff  v.  Foresman,  24  Ind. 

481.   ...    52 

Dearing    v.    Jordan    (Civ.    App. 

1910),  130  S.  W.  876 100,  114 

Deariso  v.  First  National  Bank, 

7  Ga.  App.  841. 93a 

Deaton  Grocery  Co.  v.  Interna- 
tional    Harvester     Co.     (Civ. 

App.  1907),  105  S.  W.  556....  28 
Deblois  v.  Earle,  7  R.  I.  26-.  .  82 
De  Bolle  v.   Ins.  Co.,   4  Whart. 

(Pa.)    68.  .  . 358 

De    Camp   v.    Bullard,    33    App. 

Div.    (N.    Y.)    627 67 

Dechard    v.    Edwards,    2    Sneed 

(Tenn.)   93.  .  . 220 

Decker  v.  Decker,  74  Me.  465  .  .  244 
De  Cramer  v.  Anderson,  113 

Mich.  578.  .  .  348 

Dedham  Bank  v.  Chickering,  3 

Pick.    (Mass.)    335.  .    71,  284 

Dedlick  v.  Doll,  54  N.  Y.  234-  .  •  .  56 
Dee  V.  Downs,  57  Iowa  539 ...  .  389 
Deegan     v.     Deegan,     22     Neb. 

185.  .  .  .    259,  265,  268 

Deere  Plow  Co.  v.  McCullough, 

102   Mo.  App.  458. 348 

Deering  v.  IMoore,  86  Me.  181...  54 
Deering  v.  Winchelsea,  2  Bos.  & 

P.  270.  .  .   209,  260 


486 


Table  of  Cases. 


Sec. 
Deering   v.    Winchelsea,    1    Cox 

318.  .  .  .    3,  203 

Deering  &  Co.   v.   Shumpik,  67 

Minn.  348.  .  . 51 

Deering  &  Co.  v.  Veal,   25   Ky. 

Law  Rep.  1S09    48a,  126 

Deering      Harvesting      Co.       v. 

Peugh,  17  Ind.  App.  440 51 

Degnon-McLean    Const.    Co.    v. 

City  Trust,  Safe  Deposit  and 

Surety    Co.    of     Philadelphia, 

184   N.   Y.   544. 74 

Degnon-McLean    Const.     Co.    v. 

City  Trust,  Safe  Deposit  and 

Surety   Co.,   99  App.   Div.    (N. 

Y.)    195.  .  . 74,  112e 

Degnon-McLean    Const.    Co.    v. 

City  Trust,  Safe  Deposit  and 

Surety  Co.,  40  Misc.  R.  (N.  Y.) 

530 112 

De  Greiff  v.  Wilson,  30  N.  J.  Eq. 

435 321 

De  La  Garz  v.  Cowlan,  21  Tex. 

387.  .  .  . 325 

Delaware,    Etc.     R.     R.     Co.     v. 

Iron,  38  N.  J.  Eq.  151 186 

Delo  V.  Banks,  101  Pa.  St.  458-  •     74 
Demelman   v.    Hunt,   168   Mass. 

102.   .   .   .    408 

De  Merritt  v.  Bickford,  53  N.  H. 

523.   .    .   . 383 

Deming     v.     Maas     (Cal.     App. 

1912),  123  Pac.  204- . -  - .  .100.  Ill 
Dempsey  v.  Fenno,  16  Ark.  491.  262 
Dempsey    v.    Lipp,     15    How.    Pr. 

(N.  Y.)    11.  .  .    404 

Denick  v.  Hubbard,  27  Hun   (N. 

Y.)    347.  .  . 146 

Denison    v.    Gibson,    24     Mich. 

187.   .   .   .    61 

Dennie     v.     Smith,     129     Mass. 

143 321,  325 

Dent  V.  Arthur,  156  Mo.  App.  472  382 
Denton  v.  Lytle,  4  Bush   (Ky.) 

597 210 


Sec. 
Denton  v.  Peters,  L.  R.  5  Q.  B 

475 347 

Denver    Engineering    Works    v. 

Elkins,  181  Fed.  684  121 

Deobold  v.   Oppermann,   111   N. 

Y.  531 252 

Deposit  Bank  v.  Thomason,   23 

Ky.  Law  Rep.  1957 222 

Deposit    Bank    of    Sulphur    v. 

Peck,   110  Ky.  579 36 

Derry  Bank  v.  Baldwin,  41  N.  H. 

434 58 

Desgranges    v.    Newbauer,    149 

Mo.  App.  715.  .  .  348,  349 

De    Sisto   V.    Stummel,    58   App. 

Div.    (N.  Y.)    486   301 

Desserick    v.    Merle    &    Heaney 

Mfg.  Co.,  Colo.  109  Pac.  949..  361 
Detroit     v.     Weler,     29     Mich. 

24.  .  .  .    69,  301,  302 

Detroit  Sav.  Bank  v.  Ziegler,  49 

Mich.  157.  .  . 80,  285 

Devers     v.     Howard,     144     Mo. 

671 112 

Devine  v.  State,  5  Sneed  (Tenn.) 

623 414,  429 

Dewey  v.  Field,  4  Met.   (Mass.) 

381.  .  .      148 

Dewey    v.    Investment    Co.,    48 

Minn.  130.  .  .    359 

Dewey,   v.   Kavanaugh,   45   Neb. 

233 333 

Dewey    v.    McCollum,     91     Ind. 

173.  .  .  . 112 

De  Witt  Co.  Bank  v.  Nixon,  125 

111.   615 347 

De   Wolf  V.   Reland,   1   Pet.    (U. 

S.)   476.  .  .  . 383 

Dexter    v.    Blanchard,    11    Met. 

(Mass.)   365 376 

Dey  V.  Martin,  78  Va.  1 102 

Dibble  v.  Richardson,  171  N.  Y. 

131.   .   .   .    19 

Dick  V.  Moon,  26  Minn.  309 152 

Dickerman    v.    Miner,    43    Iowa 

508.  .  .  .   .. 110 


Table  of  Cases. 


487 


Sec. 
Dickerson  v.  Derrickson,  39  111. 

574 353 

Dickerson  v.  Heman,  9  Daly  (N. 

Y.)    298.  .   .    223 

Dickerson     v.     State,     20     Neb. 

72.  .  .  .   431 

Dickson  v.  Conde,  148  Ind.  279..  396 
Diefentlhaler    v.    Hall,    96     111. 

App.   639    51 

Dienst  v.  Fleischmann  Loan  & 

Building  Co.,  30  Ohio  Cir.  Ct. 

R.  537.  .  . 144a 

Diers  v.  Mallon,  46  Neb.  121...  323 
Dlllenback  v.   Dygert,   97  N.   Y. 

303.  ...   206 

Dillman  v.  Nadelhoffer,  160  111. 

121.  ...   35,  39,  342,  359,  360 

Dillon  V.  Russell,  5  Neb.  484...  113 
Dillon  V  Scofield,  11  Neb.  419. . .  168 
Dimmick    v.    Collins,    24    Wash. 

78.   .   .   .    381 

Dinkins  v.  Bailey,  23  Miss.  284  163 
Dinsmore  v.  Tidhall,  34  Ohio  St. 

411 143,  287 

Disborough  v.  Bidraan,  20  N.  J. 

L.  275    90 

Dishneau    v.    Newton,    91    Wis. 

199.  .  .    324 

Dist.  Tp.  of  Fox  V.  McCord,  54 

Iowa   346.   .    71 

Ditmars   v.     Commonwealth,     7 

Pa.   St.   335.    334 

Diversy  v.  Moor,  22  111.  331 15 

Dix  V.  Morris,  66  Mo.  514   244 

Dixon  V.  Ewing,  3  Ohio  S.  280.  132 
Dixon  V.  Spencer,  59  Md.  246-.  363 
Dixon  V.  Steel,  80  Law  T.  R.  (N. 

S.)    404 154 

Doane    v.     Eldridge,     16     Gray 

(Mass.)  254.  .  .   106 

Doane    v.    New    Orleans,    Etc. 

Tel.  Co.,  11  La.  Ann.  504 126 

Dobbins   v.    Bradley,    17   Wend. 

(N.  Y.)    422    79,  356 

Dobie    V.    Fidelity    &    Casualty 

Co.,  95  Wis.  540.   149 


Sec. 
Dobyns    v.    McGovern,    15    Mo. 

662.  .  .  .   249 

Dock  V.  Boyd,  93  Pa.  St.  92 379 

Dodd  V.  Drefus,  17  Hun  (N.  Y.) 

600 20 

Dodd     V.     Vucovich,     38     Mont. 

188.  .  .  .    .' 100,  111 

Dodd  V.  Wilson,  4  Del.  Ch.  399.   163 

Dodd  V.  Winn,  27  Mo.  504 196 

Dodder  v.  Moberly  (Okla.  1911) 

114  Pac.  714 182 

Dodge  V.  McKeihnie,  156  N.  Y. 

514.  .  .  .   189 

Dodge  V.  Myer,  1  Cal.  405.-...  356 
Dodge     V      Perkins,     9      Pick. 

(Mass.)   368 319 

Dodgson  V.  Henderson,  113  111. 

360,  361 46,  363 

Doe    V.    McFarland,    9    Cranch 

(U.  S.)    151   245 

Doe  V.  Tuttle,   4  Mass.  414 121 

Doll  V.  Crume,  41  Neb.  655 112 

Donahue  v.  Gunter,  142  Wis.  447  437 
Donald  v.  First  National  Bank 

of   Commerce    (Miss.   1911),  54 

So.  72    129 

Donavan     v.     Cornell,     3     Day 

(Conn.)   339.  .  .   404 

Doniphan  v.  State,  50  Miss.  54  430 
Donley  v.  Camp,  22  Ala.  659...  349 
Donnell  Manf.  Co.  v.  Jones,  49 

111.  App.  327.  . 56,     57 

Don  Yook  v.  Mill  Co.,  16  Wash, 

450 387 

Doolittle     V.     Dwight,     2     Met. 

(Ky.)    561.  .  . 180,  187 

Doorley  v.  Farmers'  Mechanics' 

Lumber  Co.,  4  Kan.  App.  93-  •     51 
Doran  v.  Cohen,  147  Mass.  342.  217 

Doran  v.  Davis,  43  Iowa  86 188 

Doremus    v.    Selden,    19    John. 

(N.  Y.)    213.    187 

Dorrington  v.  Minnick,  15  Neb. 

397 182 

Dorsey  v.  Wyman,  6  Gill.  (Md.) 

59.   .   . 178 


488 


Table  of  Oases. 


Sec. 
Dorsheimer  v.  Bucher,  7   Serg. 

&   R.   9.   . 152 

Doty  V.  Braska,  138  Iowa  396-.  437 
Doud  V.  Walker,  48  Iowa  634..  77 
Dougherty  v.  Van  Riper   (N.  M. 

1911),  120  Pac.  333  385 

Douglas  V.  Day,  28  Ohio  St.  175  258 
Douglass  V.  Rowland,  24  Wend. 

(X.  Y.)   35  .  .   ....348,  355 

Douglass    V.    Kessler,    57    Iowa 

63 260 

Douglass  V.  Mayor,  56  How.  Pr. 

(X.   Y.)    178 244 

Douglass  V.  Reynolds,  7  Pet.  (U. 

S.)    113.  . 45,  354,  355,  356 

Douglass  County  v.  Bardon,  79 

Wis.  641 54 

Dover  v.  Robinson,  64  Me.  183.  106 
Dover    v.    Twombly,    42    X.    H. 

59.  .  .   . .70,  305 

Dow-Hayden     Grocery     Co.     v. 

Murray,     24    Ky.     Law     Rep. 

2255.   ...    42,   56,     57 

Downer  v.  Dana,  17  Vt.  518-  -  .  144 
Downey    v.    Hinchman,   25    Ind. 

453 385 

Downing     v.     Funk,     5     Rawle 

(Pa.)    69.   .    . 341 

Downing    v.    Linnille,    3    Bush 

(Ky.)    472.  .  .    153 

Dows  V.  Sweet,  134  Mass.  140.-  390 
Dows  V.  Sweet,  127  Mass.  364..  390 
Dows  V.  Sweet,  120  Mass.  322..  390 
Dozies  V.  Lea,  Humph.  320.  ...  .  171 
Drake  v.  Flewellen,  33  Ala.  106.  380 
Drake  v.  Sherman,  197  111.  362.  97 
Drakely   v.   Gregg,   8   Wall.    (U. 

S.)    242.  .   .    114 

Drane     v.     Baylies,     1     Humph. 

(Tenn.)    173    246 

Draper  v.  Romeyn,  18  Barb.  (N. 

Y.)    166 49 

Draper  v.  Snow,  20  X.  Y.  331..  342 
Draper      v.      Wild,      13      Gray 

(Mass.)   580 120 


Sec- 
Draper     v.     Wood,     112     Mass. 

315.  .  .  .    103,  109 

Dray  v.  Davy,  10  Ad.  &  El.  30. .  79 
Dreeben  v.  First  Xational  Bank 

(Tex.  Civ.  App.  1906),  93  S.  W. 

510 113,  119 

Drescher    v.    Fulham,    11    Colo. 

App.  62.  .  .   171 

Dressier  v.  Davis,  12  Wis.  58-.  227 
Drew  V.  Lockett,  32  Beav.  499.  152 
Driskell  v.  Mateer,  31  ]Mo.  325.  .  147 
Dr.  Koch  Vegetable  Tea  Co.  v. 

Gates,  43  Wash.  478.   285 

Drumheller  v.  American  Surety 

Co.,  30  Wash.  530.   .112b 

Drummond     v.      Prestman,      12 

Wheat.   (U.  S.)   515    321,  356 

Drummond     v.     Yager,    10     111. 

App.  380.  .  .   194 

Dry   Goods    Co.    v.    Yearout,    59 

Kan.   684.   .   . 356 

Dubois  V.  Mason,  127  Mass.  37.  17 
Dubuque     First    Xat.    Bank    v 

Carpenter,  41  Iowa  518 357 

Ducker     v.     Rapp,     67     X.     Y. 

464.    .    .    .    81,  113 

Dufan  v.  Wright,  25  Wend.    (X. 

Y.)    636.  .   . . 82 

Dugger  V.  White,  51  Ark.  232..  247 
Dugins    V.    Edwards,    17    How. 

Pr.    (X.  Y.)    290.    404 

Duke  V.  State,  35  Tex.  424 431 

Du  Laurence  v.  State,  31  Ohio  C. 

C.  414    421 

Dunbar    v.    Cazoit    &    McGehee 

Co.,  96  Ark.  308. 171 

Duncan  v.  Tindall,  20  Ohio  St. 

567.   .   .   . 411 

Duncanson  v.  Kuby,  90  111.  App. 

15.  .   .   . 342 

Dunfee  v.  Dunfee,  145  App.  Div. 

(X.   Y.)    108.   . .   126 

Dunkin  v.  Hodge,  46  Ala.  523..  416 
Dunlap  v.  Foster,  7  Ala.  734.168,  207 
Dunlap    V.    Willett,    153    X.    C. 

317 50 


Table  of  Cases. 


489- 


Sec. 
Dunn  V.  Garrett,  93  Tenn.  650.  51 
Dunn  V.  Slie,  Holt  N.  P.  399.  .  ■    120 

Dunn  V.  Wade,  23  Mo.  207 210 

Dunn  V.  West,  5  B.  Mon    (Ky.) 

376.   .   .   . 382,  383 

Dunne  v.  American  Surety  Co., 

34  Misc.  R.  (N.  Y.)  584 242 

Dupee  V.  Blake,  148  111.  453 116 

Durand  v.  Truesdell,  44  N.  J.  L. 

597. 163 

Durbin   v.    Kuney,    19    Oreg.    71, 

74.  .  .  .   194,  211 

Durden  v.  Dehle,  3  Ga.  App.  97.  26 
Durpee  v.  People  ex  rel.  Askren, 

155   111.   354 30 

Dwelling     House     Ins.     Co.     v. 

Johnston,   90  Mich.   170 88 

Dwight    V.    Guanajuato    Min.    & 

Mill  Co.,  142  App.  Div.  (N.  Y.) 

354.    .    .    .    359 

Dyott  V.  Dean,  2  Chit.  72 404 

Dysart      v.      Crow,       170       Mo. 

275 196,  197 

E. 

Eagan   v.   Mahoney    (Colo.  App. 

1912),  121  Pac.  108. 30 

Earp    V.    Stephens,    1   Ala.    App. 

447    334 

East  Bridgewater  Savings  Bank 

V.  Bates,  191  Mass.  110 86 

Easterly  v  Barber,  66  N.  Y.  433  210 
Eastern,  Etc.  R.  R.  Co.  v.  Coch- 
rane, 23  L.  J.  N.  S.  61 282 

Eastern  R.  R.  Co.  v.  Loring,  136 

Mass.   381.    .   . 286 

Eastman     v.     Foster,     8     Met. 

(Mass.)    19.  .  . 151 

Eastman    v.    Plumer,    32    N.    H. 

238.  .   .   . 94,     96 

Easton     v.     Ormsby,     18    R.    I. 

309 216,  131 

Eastwood  V.  Kenyon,  11  Ad.  & 

E.   438 306,  374 

Eaton    V.    Foster,    66    111.    App. 

486 350 


Sec. 
Eaton    V.    Harth,    45    111.    App. 

355.   .   .   . ••   321 

Eaton     V.      Lambert,      1      Neb. 

339.   .  .   . 163,  186 

Eaton  Rapids  v.  Stump   (Mich.) 

86  N.  W.  438.  .  .   301 

Eau  Clair  St.  Louis  Lumber  Co. 

V.  Banks,  136  Mo.  App.  44.66,  67 
Eberhart  v.  Page,  89  111.  550...   347 

Eddy  V.  Heath,  31  Mo.  141. 6 

Eddy  V.  Kincard,  28  Oreg.  53?..  305 
Eddy  V.  Roberts,  17  111.  505...  386 
Edeton  v.  White,  6  Bush   (Ky.) 

408.   .   .   . •  •   210 

Edgerly  v.  Lawson    (Mass.),   57 

N.  E.  1020   357 

Edmonds    v.    Sheahan,    47    Tex. 

443 166,  198 

Edmonson    v.    Potts    Admr.    Ill 

Va.  79.   .  . 144a 

Edward  v.  County  of  Hennepin, 

116  Minn.   101    437 

Edwards    v.    Bucker,     66    Kan, 

241 235a 

Edwards  v.  Davenport  (U.  S.  C. 

C),  20  Fed.  756.   25 

Edwards  v.  Van  Cleave,  47  Ind. 

App.   347    396 

Ehrlich  v.  Ringer,  65  Misc.  R.   (N. 

Y.)    15    224 

Eickhoff   v.   Eikenbary,   52   Neb. 

332 134 

Eisley  v.  Horr,  42  Neb.  3.   3 

Elbert  v.  Jacoby,  8  Bush   (Ky.) 

547 203 

Elder  v.  Elder,  43  Kan.  514 190 

Elder  v.  Prussing,  101  111.  App. 

655.  .  .  65 

Elder   v.  Warfield,    7     H.    &     J. 

(Md.)    391.   .   .    374 

Elevator  Co.  v.  Memphis  &  C.  R. 

Co.,  85  Tenn.  703 28 

Elkin  V.   People,   3   Scam    (111.) 

207.  .  .  .   328 

Ellesmere      Brewing      Co.      t 


490 


Table  of  Cases. 


Sec. 

Cooper      (1896),      2      Q.      B. 

75.  .  .  . 3,  77,  103,  194,  197,  205 

Ellett-Kendell    Co.    v.     Western 

Store's  Co.,  132  Mo.  App.  513  30 
Ellicott  V.  Nichols,  7  Gill   (Md.) 

85 167,   190,  371 

Elling  V.  Vanderlyn,  4  John.  Ch. 

(N.  Y.)    237 167,  190,  341,  371 

Elliott  V.  Commonwealth,  144  Ky. 

335    333 

Elliott  V.  Quails,   149  Mo.  App. 

482.    .    . 121 

Ellis  V.  Adderton,  88  N.  C.  472-  .  63 
Ellis  V.   Conrad   Seipp  Brewing 

Co.,    207    111.    291. 132 

Ellis  V.  Felt,  8  Ga.  App.  408  ....  385 
Ellis  V.  Fisher,  10  La.  Ann.  479.  224 
Ellis  V.  Johnson,  96  Ind.  177...     11 

Ellis  V.  Wilmot,  10  Exch.  10 92 

Ellison  V.  Jackson,  12  Cal.  542.   381 

Ellison  V.  State,  8  Ala.  273 419 

Ellsworth    V.    Brewer,    11    Pick. 

(Mass.)  320.  .  .  16 

Ellsworth   V.   Harrison,   101   111. 

274 82,  357 

Elton     V.     Johnson,     16     Conn. 

253 43 

Elwood   V.    Deifendorf,    5    Barb. 

(N.  Y.)   398.  .  .   159,  171 

Ely  V.  Bibb,  4  J.  J.  Marsh  (Ky.) 

71 359 

Emerson  v.  Slater,  22  How.   (U. 

S.)    28,  43 382,  383,  391 

Emery  v.  Baltz,  94  N.  Y.  408-  .  .  88 
Emmons    v.     Gordon,     140    Mo. 

490.  .  . .244,  245 

Empire  State  Surety  Co.  v.  Bal- 

lou     (Wash.    1911),    118    Pac. 

923.  .   .   .    123,  179 

Empire  State  Surety  Co.  v.  Car- 
roll   County    (C.   C.   A.   1912), 

194  Fed.  593.    . 54,  67b,  305 

Empire  State  Surety  Co.  v.  Har- 
rison,  184  Fed.  58 144a 

Endress  v.  Ent,  18  Kan.  236...  213 
Enfurth   v.    Stevenson,   71   Ark. 

199.  ...   112a 


,  Sec. 

Engles  V.  Ins.  Co.,  46  Md.  322..  285 
English     T.     Landon,     181     111. 

614 46,  114,  36? 

Ennis  v.  Smith,  4  How.  (U.  S.) 

400 260 

Eno  V.  Crooke,  10  N.  Y.  60 163 

Enright  v.   Falvey,   4    L.   R.   Ir. 

397 14? 

Enterprise  Hotel  Co.  v.  Book,  48 

Oreg.  58.  ....  ..101,  112a,  112c, 

112d,  112e 
Erie    County    Savings    Bank    v. 

Cort,  104  N.  Y.  532.   37 

Erwin     v.     Downs,     15     N.     Y. 

576 365,  366 

Erwin  v.  Lambon,  1  Harr.  (Del.) 

125.  .  .  .   349 

Eshleman  v.  Bolenires,  144  Pa. 

St.   269.   .   .    209 

Essex     Chosen     Freeholder     v. 

Lindsley,  41  N.  J.  Eq.  189 ... .  189 
Estep  V.  Lacey,  35  Iowa  419...  420 
Evans     v.     Daugherty,    84    Ala. 

68 51 

Evans  v.  Graden,  125  Mo.  72...    138 

Evans  v.  Keeland,  9  Ala.  42 126 

Evans    v.    McCormick,    167    Pa. 

St.  247.  .  . 348 

Evansville  Nat.   Bank  v.   Kauf- 

mann,  93  N.  Y.  273 340,  257 

Evers  v.  Sager,  28  Mich.  47 226 

Everson  v.  Gere,  122  N.  Y.  290.  357 
Eubanks  v.  Sites  (Tex.  Civ.  App. 

1912),  146  S.  W.  952   194a 

Ewen  V.  Wilbor,  99  111.  App.  132  67 
Ewen  V.  Wilbor,  208  111.  492...  67 
Exchange   Bank  v.  Thomas,  25 

Ky.  Law  Rep.  228 192 

Exchange     National     Bank     of 

Chicago    V.    Curtiss,    146     III. 

App.   489.   .   .   .    356 

Exeter  Bank  v.  Rogers,  7  N.  H. 

21 72,  282 

Eyre  v.  Everett,  3  Hare  567...  193 
Eyre  v.  Everett,  2  Russ  382...    170 


Table  of  Cases. 


491 


T.  Sec. 

Fairbank  Co.  v.  American  Bond- 
ing &  Trust  Co.,  97  Mo.  App. 

2C5.  .  .  .  67,  101 

Faire's    v.    Cockerell,    88    Tex. 

428.   .   .  .    173,  178 

Fairlie    v.    Denton,    8    B.    &    C. 

395.  .   .   .    397 

Fales    &    Jenks    Mach.    Co.    v. 

Browning,    68    S.   C.    13 342 

Fall  V.  Youmans,  67  Minn.  83-.  359 
Farmer    v.    Russell,    1    Bos.    & 

Pul.  296   ..  .  38 

Farmers'  &  Drover's  Nat.  Bank 

V.  Braden,  145  Pa.  St.  473 141 

Farmers'    &    Merchants'    Bank 

V.  Shoib,  137  Cal.  685 171 

Farmers'  Bank  v.  Wickliffe,  131 

Ky.   787.   .  . 113 

Farmers',   Etc.   Bank  v.   Evans, 

4  Barb.  (N.  Y.)  487 77 

Farmers'  Nat.  Bank  v.  Braden, 

145  Pa.   St.   473.   . 292 

Farmers'    Nat.    Bank    v.    Snod- 

grass,  29  Oreg.  395.    208 

Farmers'   Supply   Co.   v.   Weiss, 

115  Minn.  428.  . 113,  171 

Farmington   v.    Hobert,    74   Me. 

416.  .  .  . 35S 

Farnham  v.  Monroe,  35  111.  App. 

114 Ill 

Farnum  v.  Blackston,  1  Sumner 

(U.   S.)    46 28 

Farrar  v.  United  States,  5  Pet. 

(U.   S.)    373 74,   260,   276,  302 

Farrell  v.  Maxwell,  28  Ohio  St. 

283 382,  383 

Farrelly  v.  Schaettler,  143  App. 

Div.   (N.  Y.)    273 177 

Father  Matthew  Soc.  v.  Fitzwil- 

liams,   84  Mo.    407 61 

Faulkner    v.    Gilbert,    57    Neb. 

544.  ...   341 

Faurot     v.      Gates,      86      Wis. 

569 196,  197 

TsLUSt  V.  Rodelheim,  77  N.  J.  L. 

740 36 


Sec. 

Faurote  t.  State,  110  Ind. 
463 79 

Favorite  v.  Stidham,  84  Ind. 
423 36 

Fawcett  v.  Freshwater,  31  Ohio 
St.  637.  .  .   46 

Fay  V.  Edmiston,  25  Kan.  439-.   321 

Fay  V.  Smith,  1  Allen,  477 107 

Fay  V.  Taylor,  11  Mete.  (Mass.) 
529 261 

Pay  V.  Tower,  58  Wis.  286-....   114 

Fayette  Title  &  Trust  Co.  v. 
Maryland,  B.  &  W.  V.  T.  &  T 
Co.  (U.  S.  C.  C),  180  Fed.  928     67 

Fears  v.   Story,  131  Mass.  47-.   377 

392,  396 

Federal  Union  Surety  Co.,  Matter 
of,  73  Misc.  E.    (N.  Y.)    28 274 

Pehr  Brewing  Co.  v.  Mullican, 
23  Ky.  Law  Rep.  2100 141 

Fellows  v.  Prentiss,  3  Denio  512  122 

Felton  v.  Bissel,  25  Minn.  20...    196 

Fergus  Falls  v.  Illinois  Surety 
Co.  (Minn  1910),  128  N.  W. 
820.  .  ...101,  112,  112b,  112c,  112d 

Fernau  v.  Butcher,  113  Pa.  St. 
292.  .  .  .   215 

Ferry  v.  Bobbins  (U.  S.  C.  C), 
122  Fed.  725. 233,  235a 

Ferst  V.  Blackwell,  39  Fla.  621-  •   341 

348,  352 

Fetrow  v.  Wiseman,  40  Ind.  148     24 

Fewlass  v.  Keesham,  88  Fed. 
573.   .   .   . 306 

Fidelity  &  Casualty  Co.  v.  Law- 
lor,  66  Minn.  144. 382 

Fidelity  &  Deposit  Co.  v.  Agnew. 
152  Fed.  955.  .    112a  112d 

Fidelity  &  Deposit  Co.  v.  Buck- 
ley (N.  H.  1910),  77  Ala.  402.    174 

Fidelity  &  Deposit  Co.  v.  Flem- 
ing, 132  N.  C.  332.   308 

Fidelity  &  Deposit  Co.  v.  Rob- 
ertson, 136  Ala.  379.    144a 

Fidelity  Mutual  Life  Assn.  v. 
Dewey,  83  Minn.  389.  ...     72,  297a 


492 


Table  of  Cases. 


Sec. 
Fidelity  Mutual  Life  Ins.  Co.  v. 

Stegall,  27  Okla.  151 . 45 

Fidler    v.    Hershy,    90    Pa.    St. 

363 146 

Field  V.  Brokaw,  148  111.  654..  134 
Field  V.  Burr  Brewing  Co.,  18  N 

Y.  Supp.  456.  .  .  30 

Field  V.  Holland,  6  Cr.  8 97 

Field  V.  Marsh,  85  111.  App.  1G4.  348 
Field  V.  Newspaper  Co.,  21  La. 

Ann.  24 16 

Field  V.  Wallace,  89  Iowa  597.  .  333 
Files  V.  Davis  (U.  S.  C.  C),  119 

Fed.  1002..  .  . 222 

Filon  V.  Brewing  Co.,  38  N.  Y. 

St.  R.  602.  .  .   28 

Findley  v.  Bank,  2  McLean,  44.  .  95 
Findley   v.   Findley,    42    W.   Va. 

372.  .  .  .   261 

Finney  v.  Cowdon,  86  111.  78.  .  •  •  77 
Firestone  v.  Rice,  71  Mich.  377  323 
First    National    Bank    v.    Bean, 

141  Wis.  476.  .   .    341 

First  National  Bank  v.  Briggs' 

Assignees,  69  Vt.  12 70 

First    National    Bank    v.    Burns 

(Civ.  App.  1910),  126  S.  W.  34  51 
First  National  Bank  v.  Carpen- 
ter Stibbs  &  Co.  41  Iowa  518. .  26 
First  National   Bank   v.  Currie, 

147   Mich.   72.   .    . 113 

First  National  Bank  v.  Davis,  87 

Mo.  App.  242.  . 113,  151 

First  National  Bank  v.  Fidelity 

&    Deposit   Co.    of    Maryland, 

145  Ala.  335.  .    112a,  112d 

First   Nat.    Bank   \\   Finck,    100 

Wis.  446. 21 

First  National   Bank  v.   Gaddis, 

31  Wash.  596 374 

First  National  Bank   v.   Gaines, 

87  Ky.  597.  .  . 438 

First    Nat.    Bank    v.    Gerke,    68 

Md.  449.  .  . .  .  ..66,  67,     72 

First     Nat.     Bank     v.     German 

Bank,  107  Iowa  543.  . 336 


Sec. 
First  National  Bank  v.  Good- 
man, 55  Neb.  418. 100 

First  National  Bank  v.  Green- 
ville  Oil   and  -Cotton   Co.,   24 

Tex.   Civ.  App.   645    398 

First  National  Bank  v.  Johnson, 

133  Mich.  700.  .   .. 37,  126,  141 

First  National  Bank  v.  Jones,  92 

Wis.  36.  .  .  37 

First    National    Bank    v.    Kittle 

(W.  Va.  1911),  71  S.  E.  109...  128 
First  Nat.   Bank   v.   Leavitt,   65 

Mo.  562 121,  122 

First    Nat.    Bank    v.    Martin,    81 

Kan.   794    238 

First  National  Bank  v.  Parsons, 

45    W.   Va.    688 114,    130,  134 

First    National    Bank    v.    Rusk, 

Pine  Ice  Co.    (Tex.  Civ.  App. 

1911),  136  S.  W.  891    113 

First  Nat.  Bank  of  Victoria  v. 

Skidmore,  Civ.  App.  1895),  30 

S.  W.  564.  . 171 

First   National   Bank   v.    Story, 

200  N.  Y.  346.    359 

First    National    Bank    v.    Story, 

131  App    Div.   (N.  Y.)   472 359 

First   National   Bank   v.    Swink, 

129  N.  C.  225.  .   113 

First  National   Bank  v.   Taylor 

(Utah  1911),  114  Pac.  529.341,  357 
First  National  Bank  v.  Wells,  98 

Mo.  App.  573.  .    113a 

First  Nat.  Bank  v.  Whitman,  66 

111.  33  .  . 118 

First  National  Bank  v.  Willem, 

65  Neb.  242.  .  .   128,  152 

First  Nat.  Bank  v.  Winchester 

119  Ala.  168 30,     35 

First  National  Bank  v.  Wunder- 

lick,  145  Wis.  193.    354 

Fischer  v.   Garther,   32  Oreg.    101   196 

197 

Fish  V.  Glover,  154  111.  86 145 

Fish  V.  Hutchinson,  2  Wils.  94.  39 
Fish  V.   Stowe,  6  Dak.  35 362 


Table  of  Cases. 


493 


Sec. 
Fisher  v.  Fallows,  5  Esq.  171..   406 

Fisher  v.  Lutz,  146  Wis.  664 386 

Fisher    v.     Shattuck,     17     Pick. 

(Mass.)   252.  . 136 

Fitch  V.  State,  2  Nott  &  M.   (S. 

C.)    588.   .   . 431 

Fitzgerald  v.  Morrissey,  14  Neb. 

198.  .   .    377,  381,  392,  393,  396 

Flagg  V.  Giltmaker,  98  111.  293-  •  11 
Flanagan  v.  Post,  45  Vt.  246 -.3,  203 
Flannery    v.    Chidgey,    33    Tex. 

Civ.  App.  638.  .   374 

Fleece  v.  State,  25  Ind.  384 431 

Fleenor  v.  State,  58  Ind.  166 434 

Fleming  v.  Shockley,  8  Ga.  App. 

229,  68  S.  E.  1013  415 

Flentham   v.    Steward,    45    Neb. 

640 348 

Fletcher  v.  Austin,  11  Vt.  447  •  •  54 
Fletcher    v.    Grover,    11    N.    H. 

368 22,  198 

Fletcher     v.     Jackson,     23     Vt. 

581.  .  .   . ...  .187,   196,  200,  201 

Flint  V.  Land  Co.,  89  Me.  420-  •  387 
Flynn  v.  Hudd,  27  111.  323..  119,  171 
Flynn  v.  Ins.  Co.,  115  Mass.  449.  358 
Foerderer    v.    Moors,    91    Fed. 

476.   ...    362,  364 

Fobs  V.  Rain,  39  Misc.  R.  316-  •  324 
Follansbee  v.  Johnson,  28  Minn. 

311 12 

Folman  v.  Siler,  132  Ala.  297-  ■  .  126 
Fonda  v.  Van  Home,  15  Wend. 

(N.   Y.)    631.   .    24 

Fond  du  Lac  v.  Moore,  58  Wis. 

170 27 

Foot  V.  Sabin,  19  Johns.  154 26 

Forbes  v.  Harrington,  171  Mass. 

386.  .  .  .   260 

Forbes    v.    McHugh,    152    Mass. 

412.  .  .  . 256 

Forbes  v.  Thorpe,  209  Mass.  570  379 
Ford  V.  Keith,  1  Mass.  139..  178,  185 
Ford    V.     Williams,     13     N.    Y. 

584.  .  .  .    219,  231 


Sec. 
Forest's  Oil  Co.  Appeal,  118  Pa. 

St.   138.   .   .    158 

Forgarty  v.  Finlay,  10  Cal.  239.  336 
Fornes  &  Co.  v.  Wright,  91  Iowa 

392.  ...    26 

Forrest  v.  White  Sewing  Mach. 

Co.    (Tex.  Civ.  App.  1902),  67 

S.   W.   340.   . 51 

Forrester  V.  Steele,  46  Md.  154.  259 
Forrester  v.  Vason,  71  Ga.  49-.  264 
Fortney  v.  Commonwealth,  140 

Ky.  545    413,  434 

Forty   Acre   Spring   Live   Stock 

Co.    V.    West    Texas    Bank    & 

Trust    Co.    (Civ.    App.    1908), 

111  S.  W.  417   30 

Fossett    V.    State,    43    Tex.    Cr. 

App.  117 423 

Foster  v.  State,  27  Tex.  236. 431 

Foster  v.  Wise,  46  Ohio  St.  20-  ■  247 
Fourth  Nat.  Bank  of  Cincinnati 

V.  Mayer,  100  Ga.  87 171 

Fowler    v.     Brooks,     13     N.     H. 

240 35,  46,  89,  118 

Fowler  v.  Strickland,  107  Mass. 

552.   .   .   .    186 

Fox  V.  Parker,  44  Barb.   (N.  Y.) 

541.  .  .  . 116 

Fox  V.  Rural  Home  Co.,  90  Hun 

(N.  Y.)   365.  .  .   28 

Foxworth    V.    Bullock,    44    Miss. 

457 92 

Francis  v.  Northcote,  6  Tex.  185  258 
Frank  v.  Kuhlmann,  63  Misc.  R. 

(N.  Y.)   334.  .   Ill 

Frank  v.  Snow,  6  Wyo.  42 171 

Frank  Feho  Brewing  Co.  v.  Mul- 

lican,  23  Ky.  Law  Rep.  2100-  .   287 
Franklin  v.  Thurler,  1  Cow.  (N. 

Y.)   427.  .  . 408 

Franklin  Bank  v.  Cooper,  36  Me. 

179 140,  141,  287,  288 

Franklin    Bank    v.    Stevens,    39 

Me.    532,   542 140,  288 

Fransioli   v.    Thompson    (Wash. 
1909),  104  Pac.  278 .100,  101 


494 


Table  of  Cases. 


Sec. 
Fraser  v.  Little,  13  Mich.  195-  74 
Frazer  v.  Frazer,  25  Ky.  Lav- 
Rep.  473.  .  .  .    243 

Freakley  v.  Fox,  9  Bain.  &  Cr. 

130 251 

Frederick  v.  Moore,  13  B.  Mon. 

(Ky.)    478.   .   .    262 

Freedman    v.   Vallie    (Tex.    Civ. 

App.  1903),  75  S.  W.  322.. 259,  263 
Freeholders  v.  Wilson,  16  N.  J. 

L.  110   328 

Freeman  v.  Berkey,  45  Minn.  438  112 
Freeman  v.  Brewster,  93  Ga.  648  267 
Freeman  v.  Cherry,  46  Ga.  14..  206 
Freeman    v.    Creech,    112    Mass. 

180  217 

Freestour  v.  Rice,  71  Mich.  377  323 
Freeman  v.  State,  112  Ga.  648..  433 
Freese  v.  Brownell,  35  N.  J.  L. 

285  185 

French   v.   Dauchy,  57   Hun    (N. 

Y.)   100   271 

Fretwell  v.  Carter,  88  S.  C.  553  134 
Freudenstein  v.  McNier,  81   111. 

208   322 

Fribeig  v.  Donovan,  23  111.  App. 

58  168 

Frick  Co.  v.  Hoff,  26  S.  D.  360.  .      35 

36 
Fridge  v.  State,  3  Gill  &  J.  (Md.) 

103    59,  266 

Friend  v.  Rolston,  35  Wash.  422  65 
Frierson   v.   Williams,    57   Miss. 

451   93 

Frink   v.    Peabody,   26    111.   App. 

300 208 

Frink  v.  Southern  Express  Co., 

82  Ga.  33  183,  319 

Fritch  V.  Citizens'  Bank,  191  Pa. 

St.  283    2a 

Frith  V.  Sprague,  14  Mt-ss.  455  190 
Fritts  V.  Krickdorfer  (Ky.  1910), 

124  S.  W.  882    144a,  197 

Fritz  V.  Monakad,  135  App.  Div. 

(N.   Y.)    689    361 

Frohlichstein  v.  Jordan,  138  Ala. 

310   334 


Sec^ 
Frost  V.  Carter,  1  Johns.  Cas.  73  & 
Frost  V.  Mixsell,  38  N.  J.  Eq.  586  98 
Frothingham  v.  Haley,  3  Mass. 

168  6- 

Frownfelter  v.  State,  66  Md.  80.   307 

337 
Ft.  Wayne  &  C.  Co.  v.  Deane,  10 

Ind.  563    61 

Fullam    V.    Valentine,    11    Pick. 

(Mass.)    156    121 

Fuller  V.  Cushman,  170  Mass.  286  242- 
Fuller  V.  Leonard,  27  La.  Ann. 

635  15 

Fuller  V.  Morris,  4  Gray  (Mass.) 

295 298 

Fuller  V.  Scott,  8  Kan.  25... 32,     41 

341,  347 
Fuller    V.    Tomlinson,    58    Iowa 

111   364 

Fullerton  v.  Sturges,  4  Ohio  St. 

529  57 

Fullerton  Lumber  Co.  v.  Gates, 

89  Mo.  App.  201  ..101,  112b,  112c 
Fulman  v.  Seitz,  68  Pa.  St.  237.  .  362 
Fulton    V.    Matthews,   15    Johns. 

(N.  Y.)   433    46 

Fulton  V.  State,  14  Tex.  App.  32  419 
Furbish  v.  Goodman,  98  Me.  296  392' 
Furnas  County  v.  Evans,  90  Neb. 

37    318 

Furst  V.  Black,  111  Ind.  308 353 

Furst    &    Bradley    Mfg.    Co.    v. 

Black,  111  Ind.  308    348 

Fuselier    v.    Babineau,     14    La. 

Ann.   777    198 

Fusz    V.    Trager,    39    La.    Ann. 

292   223 

G. 

Gaddy   v.  Witt    (Tex.   Civ.  App. 

1911),  142  S.  W.  926 126 

Gagan  v.  Stevens,  4  Utah  348..       2 

Gage  V.  Bank,  79  111.  62 353 

Galbraith    v.    Fullerton,    53    111. 

126    114,  115 

Gale  V.  Harp,  64  Ark.  462 381 

Gallagher  v.  McBride,  66  N.  J.  L. 

360  381 


Table  of  Cases. 


49& 


Sec. 
Gallagher  v.  People,  91  111.  590  423 
Galson  v.   Brand,   75    III.   148..       3 

196,  203 
Gamble  v.  Cuneo,  21  App.   Div. 

413 C7 

Gamble  v.  Cuneo,  162  N.  Y.  634 . .     67 
Gammell   v.   Parramore,   58   Ga. 

54  353 

Gandy  v.  Gandy,  30  Ch.  Div.  57 .  •      12 
Ganey  v.  Hohlman,  145  111.  App. 

467 102 

Gannard  v.  Eslava,  20  Ala.  732.  .   160 
Gano  V.  Farmers'  Bank  of  Ken- 
tucky,   103   Ky.   508 45 

Gans  V.  Carter,  77  Md.  1 34 

Ganser  v.  Ganser,  83  Minn.  199  257 

Gansey  v.  Orr,  173  Mo.  532 374 

Ganssen  v.  United  States,  97  U. 

S.  584    312 

Garber  v.  Commonwealth,  7  Pa. 

St.  265    251 

Gardiner  v.  Harback,  21  111.  128  100 
Gardner   v.    Lloyd,    110    Pa.    St. 

278    348 

Gardner  v.  Miller,  19  Johns.  (N. 

Y.)   188   252 

Gardner  v.  Walsh,   5   El.   &   Bl. 

82   110 

Gardner  v.  Watson,  13  111.  347.  .   119 

228 
Gardner  v.  Watson,  76  Tex.  25. .  356 
Garibaldi  v.  Cagnoni,  6  Mod.  266  405 
Garland  v.  James,  73  Conn.  662  341 

Garrett  v.  Reese,  99  Ga.  494 259 

Garrett   &   Williams   v.   Hamill, 

131    N.   C.   57    374 

Garver  v.  Tissinger,  46  Ohio  St. 

56  278 

Garvey  v.  United  States  Fidelity 

&  Guaranty  Co.,  77  App.  Div. 

(N.  Y.)   391   258 

Garvin  v.  Garvin,  27  S.  C.  472..   163 
Gass   V.   Smith,  6   Gray    (Mass.) 

112    131,  216 

Gass  V.  Williams,  46  Ind.  253..   215 

220 
Gasscock   v.   Hamilton,   62   Tex. 
143  133 


Sec. 
Gates  v.  Hughes,  44  Wis.  332...  21 
Gates  V.  McKee,  13  N.  Y.  232..   354 

355 
Gates  V.  Morton  Hardware  Co., 

146  Ala.  692    2 

Gates  V.  Tebbetts,  83  Neb.  573..   93a 
Gay   V.    Hudson    River    Electric 
Power  Co.    (U.   S.  C.  C),   190 

Fed.  773   28 

Gay  V.  Hultz,  56  Mich.  153 77 

Gay  V.  Ward,  67  Conn.  147.  .367,  368 
General  Steam  Nav.  Co.  v.  Rolt, 

6  C.  B.  N.  S.  550   67,  103,  138 

George  v.  Andrews,  60  Md.  26..  11 
George  v.  Crim,  66  W.  Va.  421. .  95 
Gerber  v.  Sharp,  72  Ind.  553.158,  163 
German-American  Bank  v.  Auth, 

87  Pa.  St.  419 80,  285,  316 

German-American  Sav.  Bank  v. 

Fritz,  68  Wis.  390  163 

German    Congregation,    47    Md. 

177   102 

German  Savings  &  Loan  Soc.  v. 

Kern,  42  Oreg.  532   224 

German  Savings  Bank  v.  Drake 

Roofing  Co.,  112  Iowa  184.348,  355 
German    Savings    Inst.   v.   Vahl, 

28  111.  App.  557 123 

Germantown  Trust  Co.  v.  Whit- 
ney, 19  So.  Dak.  108 438 

Getchell    &    Martin    Lumber    & 
Mfg.  Co.  V.  Peterson,  124  Iowa 

599   74,  443,  444 

Getty  V.  Schantz,  101  Wis.  229  •  ■   359 

360 
Gibbs  V.  Blanchard,  12  Mich.  292  399 
Gibbs  V.  Johnson,  63  Mich.  671     54 

129 
Gibson  v.  Farley,  16  Mass.  280.  .  246 
Gibson  v.  Mitchell,  16  Fla.  519.  .  201 
Gibson  v.  Ogden,  100  Ind.  20- ■•    120 

171 
Gibson  v.  Patterson,  75  Ga.  549  32 
Gibson  v.  Robinson,  91  Ga.  756  243 
Gibson  v.  Shehan,  5  App.   Dist. 

Col.  391 208 

Gibson  v.  United  States,  8  Wall. 
(U.  S.)   269   314 


496 


Table  of  Cases. 


Sec. 
Giegrich  v.  People,  34  111.  448..  411 
Gieseke  v.  Johnson,  115  Ind.  308  183 

186 

Giffin  V.  Long,  96  Ark.  268 37 

Gilbank  v.  Stephenson,  30  Wis. 

155 27 

Gilbert  v.  Adams,  99  Iowa  519.  .  152 
Gilbert  v.  American  Surety  Co., 

121  Fed.  499   238 

Gilbert  v.  Henck,  30  Pa.  St.  205       4 

Gilbert  v.  Neely,  35  Ark.  24 157 

Gilbert  v.  Vail,  60  Vt.  261,  266. .  6 
Gilbert  v.  Wiman,  1  N.  Y.  550..   230 

Giles  V.  Brown,  CO  Ga.  658 242 

Gill  V.  Ferrin,  71  N.  H.  421 387 

Gillen  v.  Peters,  39  Kan.  489...  20 
Gillespie  v.  Torrance,  25  N.  Y. 

306   144 

Gillett  V.    Wiley,   126    111.   310..   259 

265 
Gillighan   v.   Boardman,  29   Me. 

79    342 

Gillinan  v.  Strong,  64  Pa.  St.  24  321 

Gillispie  v.  See,  72  Iowa  49 264 

Gilmer  v.  Baker,  24  W.  Va.  72-  .   255 

Girdley  v.  Capen,  72  111.  11 76 

Givens  v.   Gridley,   32   Ky.   Law 

Rep.   825    2b 

Glascock    V.    Hamilton,   62    Tex. 

166 202 

Glasgow  V.  State,  41  Kan.  333..  423 
Glenn  v.  Magan,  23  W.  Va.  467.  .  115 
Glenn  v.  Lehnen,  54  Mo.  45-  .342  388 
Globe  Bank  v.  Small,  25  Me.  366  349 
Globe  Printing  Co.  v.  Bickle,  73 

Mo.  App.  499 348 

Glyn  V.  Hertel,  8  Taunt.  208 362 

Goble  V.  Simeral,  67  Neb.  276..  263 
Godden  v.  Pierson,  42  Ala.  370. .  372 
Goetz  V.  Foos,  14  Minn.  265.382,  383 

Gold  V.  Johnson,  59  111.  63 224 

Goldberg    v.    Sisseton    Loan    & 

Title  Co.,  24  So.  Dak.  49 282 

Goltra  V.  People,  53  111.  224 253 

Gonser  v.  State   (Ind.  App.),  65 

N.  E.  764    302 

Good  V.  Martin,  95  U.  S.  90 347 


Sec. 

Good  V.  Martin,  2  Colo.  218 347 

Goodall    V.    Wentworth,    20    Me. 

322 22 

Goodloe  V.  Clay,  6  B.  Mon.  (Ky.) 

230  208 

Goodman  v.  Litaker,  84  N.  C.  8. .  171 

Goodwin  v.  Kent,  201  Pa.  St.  41  38 
Goodwin  v.  Simonson,  74  N.  Y. 

133   146 

Goodwin  v.  State,  81  Ind.  109..  303 
Goodyear  Dental   Vulcanite   Co. 

V.  Bacon,  151  Mass.  460... 52,  54 

Gookin  v.  Hoit,  3  N.  H.  392....  258 

Gordon  v.  Calvert,  4  Russ.  581  85 
Gordon  v.  Funkhouser,  100  Va. 

675 26 

Gordon  v.  Rixey's  Adm'r,  86  Vt. 

853 202 

Gorgan    v.    School     District,    4 

Colo.  53    84 

Gorham  v.  Keyes,  137  Mass.  583  38 

Goshen  v.  Smith,  173  N.  Y.  597  301 
Goshen  v.   Smith,   61   App.   Div. 

(N.   Y.)    461    301,  302 

Goss     V.     Gibson,     8     Humph. 

(Tenn.)  197 213 

Gosserand  v.  LaCour,  8  La.  Ann. 

75 133 

Gotzian  &  Co.  v.  Heine,  87  Minn. 

429   130 

Gould  V.  Gould,  8  Cow.    (N.  Y.) 

168 176,  187 

Gould  V.    State,   2   Penn.    (Del.) 

548    323 

Gourdin   v.   Trenholm,   25   S.   C. 

362 198 

Governor  v.  Dodd,  81  III.  162 329 

Governor    v.    Edwards,    4    Bibb. 

(Ky.)  219 325 

Governor  v.  Fay,  8  La.  Ann.  490  413 
Governor  v.  Montfort,  1  Iredell 

L.   (N.  C.)    155    328 

Governor  v.  Ridgway,  12  111.  14  329 

Governor  v.  Wise,  1  Cranch  142  325 

Gowing  V.  Gowgill,  12  Iowa  495  334 

Grace,  In  re,  71  Law  J.  Ch.  358  368 

Gradle  v.  Hoffman,  105  111.  147  292 


Table  of  Cases. 


497 


Sec 
Grady  v.  Hughes,  80  Mich.  184.  .  258 
Graff  V.  Kahn,  18  111.  App.  485.  .  144 
Grafton  v.  Hinley,  111  Iowa  46.  .  65 
Grafton  Bank  v.  Kart,  4  N.   H. 

221  171 

Graham   v.   City  of  Baxley,    117 

Ga.  42  301 

Graham  v.  Marks,  98  Ga.  67 32 

Graham  v.  Rush,  73  Iowa  451..  146 
Graham  v.  Selover,  59  Barb.  (N. 

Y.)   313   90 

Graham  v.  State  (Ark.  1911),  140 

S.  W.  735    321 

Granger  v.  Boswinkle  (Ind.  App. 

1911),  96  N.  E.  268 334 

Granite    Bldg.    Co.    v.    Saville's 

Adm'r,  101  Va.  217 144a,  393 

Grant  v.  Smith,  46  N.  Y.  95 Ill 

Grant  v.  Wolf,  34  Minn.  32 398 

Grasser  &  Brand  Brewing  Co.  v. 

Rogers,  112  Mich.  112 97 

Grauman,  Marx  &  Kline  Co.  v. 

Krienitz,  142  Wis.  556 24 

Graves  v.  Bank,  10  Bush   (Ky.) 

23   88,  126,  287 

Graves  v.  Bulkeley,  25  Kan.  249  321 
Graves    v.    Smith,    4    Tex.    Civ. 

App.   537    200 

Gray  v.  Bennett,  3  Met.  (Mass.) 

522  6 

Gray  v.  Commonwealth,  100  Ky. 

645  423 

Gray  v.  Cook,  3  Houst.  (Del.)  49  407 
Gray  v.  Davis,  89  Mo.  App.  450. .     67 

Gray  v.  Kerr,  33  Mo.  159 233 

Gray  v.  Murphy,  134  Mo.  98 54 

Gray  v.  Perkins,  12  Smedes  &  M. 

(Miss.)   622   220 

Gray  v.  School  Dist.  of  Norfolk, 

35  Neb.  438  138 

Gray  v.  State,  78  Ind.  68 59,     60 

Gray  v.  Strickland,  163  Ala.  344  414 

Gray  v.  Wood,  67  Conn.  147 306 

Grayson's    Appeal,    108    Pa.    St. 

581  113 

Graziani    v.    Commonwealth,   30 

Ky.  Law  Rep.  119 67,     69 

32 


Sec. 
Greater  v.  De  Wolf,  112  Ind.  1         74 

224 
Great  Falls  v.  Hanks,  21  Mont. 

83  306 

Greely  v.  Dow,  2  Met.  176 114 

Green  v.  Burton,  59  Vt.  423 392 

Green  v.  Crosswell,  10  Ad.  &  E. 

453 •• 382,  383,  406 

Green  v.  Kindy,  43  Mich.  279  ■  ■  54 
Green  v.  May   (Ky.  C.  A.  1912), 

147   S.  W.   428    48a 

Green  v.  Raftes,  67  Ind.  49 224 

Green  v.  Shepherd,  5  Allen  589  36 
Green  v.  Wardwell,  17  111.  278..   304 

Green  v.  Young,  8  Me.  14 85,  306 

345 
Green   Bay   &   M.    R.    R.    Co.    v. 

Union   Steamboat  Co.,   107   U. 

S.  98   31 

Greene  v.  Bates,  74  N.  Y.  333. . .   122 

Greene  v.  Dodge,  2  Ohio  231 353 

Greenfield  Lumber  &  Ice  Co.  v. 

Parker,  159  Ind.  571 112 

Greenville,   City  of.   Council  of 

V.  Ormand,  51  S.  C.  121 67 

Greenwell  v.  Commonwealth,  78 

Ky.   320    325 

Greenwich  Bank  v.  Oppenheim, 

133  App.  Div.  (N.  Y.)  586..-.  389 
Greenwood  v.  Frances  (1899),  1 

Q.  B.  312   113 

Greer  v.  McNeal,  11   Okla.   519, 

526   .". 243,  247,  253 

Gregg  V.  Currier,  36  N.  H.  200-  •  246 
Gregory  v.  Cameron,  7  Neb.  414  54 
Gregory  v.  Leigh,  33  Tex.  813..  246 

Gridley  v.  Capen,  72  111.  13 339 

Grieb  v.  Northrup,  66  App.  Div. 

(N.  Y.)   86   324 

Grier  v.  Flitcraft,  57  N.  J.  Eq. 

556 113,  134,  170,  171 

Grier  v.  Irwin   (Iowa,  1909),  86 

W.  W.  273   352 

Griffin  v.  Cunningham,  183  Mass. 

505    385 

Griffin  v.  Hoag,  105  Iowa  499..   392 


498 


Table  of  Cases. 


Sec 

Griffin  v.  Long,  96  Ark.  26S 2a 

Griffin  v.  Long   (Ark.  1910),  131 

S.  W.  672  174 

Griffin  v.  Moore,  2  Ga.  331 412 

Griffith  V.   Sitgraves,  90  Pa.  St. 

161    32,  136 

Grimm  v.  School  Dist.,  51  Pa.  St. 

219   54 

Gring's  Appeal,  89  Pa.  St.  336..  338 
Griswold  v.  Frank,  22  Ohio  St. 

90 244 

Griswold     v.     Hazels,     62     Neb. 

888    66,   67,  224 

Grocer's   Bank   v.   Kingman,    16 

Gray  (Mass.)  473-72,  286,  293,  298 
Grommes  v.  Trust  Co.,   147   111. 

634  Ill 

Gross  V.  Bouton,  9  Daly   (N.  Y.) 

25 226 

Gross  V.  Davis,  87  Tenn.  226..  196 
197,  200,  202 
Grove  Improvement  Co.  v.  Title 

Guaranty  &   Surety  Co.    (Ind. 

App.  1912),  98  N.  E.  373 144a 

Grover  v.  DuBois,  1  Term  R.  212  394 
Guardian  v.  Ghio,  92  Tex.  651-  .  441 
Guardianship     of    Fardette,     86 

App.  Div.   (N.  Y.)    50 259 

Guardian  Trust  Co.  v.  Peabody, 

195  N.  Y.  544    93a,  356 

Guardian  Trust  Co.  v.  Peabody, 

122  App.  Div.  (N.  Y.)  648.  .93a,  356 
Guernsey  v.  Marks  (Oreg.  1910), 

106  Pac.  334 174,  182 

Guild  V.  Butler,  127  Mass.  386..   130 

171 
Guild  V.  Butler,  122  Mass.  498.  .  92 
Guild  V.  Conard   (1894),  2  Q.  B. 

885 382 

Gunn  V.  Barry,  15  Wall.  (U.  S.) 

610   161 

Gunn  V.  Geary,  44  Mich.  615 66 

Gustine  v.  Bank,  10  Rob.    (La.) 

412   95 

Gwynne  v.  Burnell,  7  CI.  &  F. 

572 69,  307,  337 


H.  Sec. 

Habershaw  v.  Sears,  11  Oreg. 

431 325 

Hackett  v.  Watts,  138  Mo.  502.  .  152 
Hadaway  v.  Hynson,  89  Md.  305  30 
Hadley  v.  Ewings,  4  Bibb.  (Ky.) 

505 405 

Hagadorn  v.  Stronack,  81  Mich. 

56 381 

Hagan    v.     Mounts,     3     Blackf. 

(Ind.)   57    179- 

Hagey  v.  Hill,  75  Pa.  St.  108 116 

Haight  V.  Brisbin,  100  N.  Y.  219  242 
Haigler   v.   Adams,    5    Ga.    App. 

637   100,  112a 

Haines  v.  Dennett,  11  N.  H.  180  109 
Haines  v.  Hein,  67  App.  Div.  (N. 

Y.)   389   438 

Hale  V.  Dresser,  73  Minn.  277..  341 
Hale  V.  Wetmore,  4  Ohio  St.  600  157 
Hall  V.  Alford,  105  Ky.  664.  .385,  391 

Hall  V.  Cole,  71  Ark.  601 257 

Hall  V.  Cresswell,  12  Gill  &  J. 

(Md.)  36 164 

Hall  V.  Fariner,  5  Denio  (N.  Y.) 

484   347 

Hall  V.  Hall,  34  Ind.  314 22,  167 

Hall  V.  Hall,  10  Humph.  (Tenn.) 

352  176 

Hall  V.  Hoxey,  84  111.  616 l32 

Hall   V.   Johnson   Hill   &   Co.,   6 

Tex.  Civ.  App.  110 20 

Hall  V.  Long,  56  Ala.  93 20,     21 

Hall  V.  Nash,  10  Mich.  303 182 

Hall    V.    Oberhellman,    23    Mo. 

App.  336 14 

Hall  V.   Ochs,  34  App.   Div.    (N. 

Y.)    103    30,  345 

Hall  V.  Parker,  39  Mich.  287 52 

Hall  V.  Parker,  37  Mich.  590 48 

Hall  V.  Presnell  (N.  C.  1911),  72 

S.  E.  985 113 

Hall   V.   Smith,   5  Plow.    (U.   S.) 

96   177 

Hall   V.   Smith,   14   Bush.    (Ky.) 

604   51 

Hall   V.  Tierney    (Minn.),   95   N. 

W.  219  301,  304 


Table  of  Cases. 


499 


Kec. 

Hall  V.  Weaver,  34  Fed.  104 3a 

Hall  V.  White,  27  Conn.  488 405 

Hall  V.  Williamson,  9   Oliio   St. 

17 232 

Halliday  v.  Hart,  30  N.  Y.  474-  •  114 
Hallock  V.  Yankey,  102  Wis.  41  113 

133 
Halsey  v.  Murray,  112  Ala.  185.  .194a 
Halshutt  V.  Pegram,  21  La.  Ann. 

722  190 

Ham  V.  Greve,  34  Ind.   18..  126,  140 

141 
Hamaker     v.     Eberly,     2     Binn. 

(Pa.)    506,  510    341 

Hamblen  v.  Knight,  60  Tex.  36. .  100 
Hamilton  v.  Bell,  123  Cal.  93..   213 

215 
Hamilton    v.    Dunblee,    1    N.    H. 

172 412 

Hamilton    v.    Hooper,    46    Iowa 

515  110 

Hamilton  v.  Johnson,  82  111.  39     10 

169 
Hamilton  v.  Watson,  12  CI.  &  F. 

109    126,  140 

Hamlin    v.    Drummond,    91    Me. 

175  385 

Hammell  v.  Beardsley,  31  Minn. 

314   2 

Hammon  v.  State,  38  Ind.  32...  431 
Hammond    v.    Beasley,    15    Lea 

(Tenn.)  618 262 

Hammond  v.  Johnson,  20  111.  367  339 
Hampshire  Bank  v.  Fillings,  17 

Pick.   (Mass.)   87   224 

Hampton    v.    Phipps,    108    U.    S. 

260    12,  151 

Hance  v.  Miller,  21  111.  636 349 

Hancock   v.    Bank   of   Tifton,    6 

Ga.  App.  678  93a 

Hancock   v.   Hazzard,    12    Cush. 

(Mass.)  112  316 

Handley  v.  Barrows,  68  Mo.  App. 

623  102 

Handley  v.  Heflin,  84  Ala.  600.  .  201 
Hand  Mfg.  Co.  v.  Marks,  56  Or. 

523    138, -308 


Sec. 
Haney  v.  People,  12  Colo.  345..     32 

Hanley  v.  Filbert,  73  Mo.  34 59 

Hanna  v.  Petroleum,  23  Ohio  St. 

622 240 

Hannay  v.  W.  L.  Moody,  31  Tex. 

Civ.  App.  88    42 

Hanner  v.  Douglass,  4  Jones  Eq. 

(N.  C.)   263   163 

Hansen    v.    Rounsavell,    74    111. 

238  97 

Hansford  v.   Perrin,   6   B.   Mon. 

(Ky.)  595 214 

Hanson  v.  Crowley,  41  Ga.  303.  .  109 
Hanson  v.  Nelson,  82  Minn.  220  374 
Harbin  v.  State,  78  Iowa  263..  431 

436 
Harbord  v.  Cooper,  43  Minn.  466  357 
Harbough  v.  Albertson,  102  Ind. 

69    62 

Harburg    India    Rubber    Comb. 

Co.  V.  Martin,  71  Law  J.  K.  B. 

529   389 

Harden  v.  Carroll,  90  Wis.  350.  .194a 
Hardin  v.  Carrico,  3  Met.   (Ky.) 

261  332 

Harding  v.  Tifft,  75  N.  Y.  461..  96 
Hardt    v.    Becknagel,    62    App. 

Div.   (N.  Y.)   106   381 

Hare  v.  Grant,  77  N.  C.  203 188 

Hare  v.  Marsh,  61  Wis.  435 227 

Hargis  v.   Begley,   33   Ky.   Law 

Rep.   1020    428 

Hargis   v.   Fidelity   Mutual  Life 

Ins.  Co.,  29   Okla.   195    45,     49 

Hargraves  v.  Lewis,  3  Ga.  162 .  .  185 
Hargraves  v.  Parson,  13  Mees.  & 

W.   500,  561    374,  385 

Hargreaves  v.  Smee,  6  Bing.  244  356 
Harker   v.    Trick,    1     N.   J.    Eq. 

269    251.  252 

Harkins  v.  Lombard,  16  Me.  140  54 
Harley  v.  Stapleton,  24  Mo.  248  177 
Harmon  v.  Hale,  1  Wash.  Terr. 

422 171 

Harms    v.    McGormick,    132    111. 

104  358 


500 


Table  of  Cases. 


Sec. 
Harney   v.   Laurie,    13   111.   App. 

400 366 

Harp  V.  Osgood,  2  Hill   (N.  Y.) 

216 416 

Harper  v.  Fairley,  53  N.  Y.  442  90 
Harper    v.    Tahourdin,    6    M.    & 

Sel.  383    27 

Harper's    Adm'r    v.    McVeigh's 

Adm'r,  82  Va.  751   174 

Harris     v.     Brooks,     21      Pick. 

(Mass.)    195    51,  147 

Harris  v.  Fawcett,  L.  R.  15  Eq. 

311    346,  368 

Harris  v.  Ferguson,  2  Bailey  L. 

(S.  C.)   397   196,  203 

Harris  v.' Frank,  29  Kan.  200-.  163 
Harris  v.  Harris,  180  111.  157-.  41 
Harris  v.  Hayes,  171  Mass.  275  408 
Harris  v.  Huntback,  1  Bur.  373  380 
Harris  v.  Kansas  Elevator  Co., 

66  Kan.  372    224 

Harris  v.  Taylor,  150  Mo.  App. 

291    66,  67a,  93a,  112a 

Harris      v.      Taylor,      3      Sneed 

(Tenn.)    536    240 

Harris  v.  Vendbly,  L.  R.  7  Exch. 

235 341 

Harris  v.  Warner,  13  Wend.   (N. 

Y.)   400   165 

Harrisburg  v.  Guiles,  192  Pa.  St. 

191   292 

Harrison  v.  Birrell,  58  Oreg.  410  396 
Harrison  v.  Clark,  87  N.  Y.  572  •  .  243 
Harrison  v.  Lane,  5  Leigh  (Va.) 

414  3 

Harrison  v.  Wilkin,  69  N.  Y.  412  59 
Harsh    v.   Klepper,   28    Ohio    St. 

200  107 

Hart  V.  Bank  of  Russellville,  32 

Ky.  Law  Rep.  338  19 

Hart  V.  Clouser,  30  Ind.  210 107 

Hart    V.    Poor    Guardians,    81% 

Pa.  St.  466 317 

Hart  V.  Strubling,  21  Fla.  136..  261 
Hart  V.  United  States,  95  U.  S. 

316  314 

Harter  v.  Miller,  67  Kan.  468..   259 


Sec. 

Harter     v.     Moore,     5     Blackf. 

(Ind.)    367   179 

Hartington  v.  Dennis,  13  Mass. 

92   414,  429,  431 

Hartley  v.  Colquitt,  72  Ga.  351-  .  426 
Hartley  v.  Sandford,  66  N.  J.  L. 

627     374,    381,  382 

Hartwell  v.  Smith,   15  Ohio   St. 

200  168 

Hartwell     &     Richards     Co.     v. 

Moss,  22  R.  I.  583   363 

Hartzell    v.    Commonwealth,    42 

Pa.  St.  453  244 

Harvey  v.  Bank,  56  Neb.  320.356,  363 

Harvey  v.  Drew,  82  111.  606 200 

Harwood    v.    Kiersted,    20     111. 

App.  367 42 

Hasteltine  v.  Guild,  11  N.  H.  390  189 
Hatch  v.  Hobbs,  12  Gray  477  •  ■  .  •   354 

Hatch  V.  Norris,  36  Me.  419 22 

Hately  v.  Pike,  162  111.  241 17 

Hatfield  v.  Merod,  82  111.  103..    160 

193 
Haubert  v.  Kraus,  4  Phil.  119- •  123 
Hauglesben    v.    People,    89    111. 

164   434 

Haupt  V.  Cravens  &  Co.,  56  Tex. 

Civ.  App.  253    49 

Haupt  V.  Vint,  68  W.  Va.  657-28,  30 
Hauser  v.  Farmers'  Supply  Co., 

6  Ga.  App.  102   30 

Haven  v.  Chicago  Sash,  Door  & 

Blind  Mfg.  Co.,  96  HI.  App.  92     35 

Haven  v.  Foley,  18  Mo.  136 151 

Haven  v.  Lathene,  75  N.  C.  505  317 
Havenstein  v.  Gillespie,  73  Miss. 

742   266 

Haverly  v.  Mercer,  78  Pa.  St. 

257  393 

Havis  V.  State,  62  Ark.  500 426 

Hawes  v.  Marchant,  1  Curt.  130  32 
Hawker  v.  Moore,  40  W.  Va.  49  338 
Hawkes     v.     Phillips,     7     Gray 

(Mass.)    284    347 

Hawkins  v.  Kimball,  57  Ind.  45  244 
Hawkins    v.    Western    National 

Bank    (Tex.   Civ.   App.    1912), 

145  S.  W.  722   18 


Table  of  Cases. 


501 


Sec. 
Hawley  v.  United  States  Fidelity 

&  Guaranty  Co.,  184  N.  Y.  549     70 

445 
Hawley  v.  United  States  Fidelity 

&  Guaranty  Co.,  100  App.  Div. 

(N.  Y.)    12    70,  445 

Haworth  v.  Crosby  &  Henshaw, 

120  Iowa  612    126 

Hayden  v.  Cabot,  17  Mass.  169-  -    183 

184 
Hayes  v.  Cooper,  14  111.  App.  490  144 

Hayes  v.  Ford,  55  Ind.  52   212 

Hayes  v.  Josephi,  26  Cal.  535-.  139 
Hayes  v.  Wells,  34  Md.  512-  .119,  363 
Hays  V.  Fidelity  &  Deposit  Co., 

112  Fed.   872    235a 

Hays  V.  Housewright  (Tex.  Civ. 

App.  1911),  133  S.  W.  922-  .178,  183 
Hazard  v.  Griswold,  21  Fed.  178  32 
Hazelton  v.  Douglas,  97  Wis.  214  259 
Hazleton  v.  Valentine,  113  Mass. 

472   177 

Head  v.  Le\T,  52  Neb.  456  334 

Heady  v.  State,  60  Ind.  316 253 

Heard  v.  Lodge,  20  Pick.  (Mass.) 

53    65,  243 

Hearne  v.  Heath,  63  Mo.  84.  .182,  183 

Heath  v.  Bank,  44  N.  H.  174 58 

Hedrick  v.  Robbins,  30  Ind.  App. 

595 101,  112b,  1126 

Hefferlin  v.  Karlman,  29  Mont. 

139    381,  398 

Hefferlin    v.    Krieger,    19    Mont. 

123    146 

Heidenheimer  v.  Brent,  59  Tex. 

533    311,  325 

Helms  Brewing  Co.  v.  Flannery, 

137   111.   309    30,     31 

Held  V.  Burke,  83  App.  Div.   (N. 

Y.)    509    76 

Hellman  v.  City  Trust,  Safe  De- 
posit &   Surety  Co.,   Ill  App. 

Div.    (N.  Y.)    879    Il2e 

Hellman    v.   Farrelly,    132   App. 

Div.    (N.    Y.)    151 112e 

Helms  v.  Society,  73  Ind.  325-.  78 
Halt  V.  Whittier,  31  Ohio  St.  475  228 


Sec. 
Henderson  v.  Coover,  4  Mo.  429  310 
Hendricks  v.  Robinson,  56  Miss. 

695    343 

Hendry  v.  Cartwright,  14  N.  M. 

72    50,     52 

Hendryn    v.    Evans,    120    Iowa 

310    128,  132 

Henricus  v.  Englert,  137  N.  Y. 

488    112,  358 

Henry  v.  Coats,  17  Ind.  162 110 

Henry    County    v.    Salmon,    201 

Mo.  136   309,  321a 

Herendeen  Mfg.  Co.  v.  Moore,  66 

N.  J.  L.  74   381 

Herman   v.   Jeuchner,   15   Q.  B. 

Div.    561     416 

Hern  v.  Nichols,  1  Salk.  289 315 

Herrick    v.    Johnson,    11    Mete. 

(Mass.)  26  54 

Herrick    v.    Swartwout,    72    111. 

340 224 

Herrick's    Minors,    In    re,    3    Ir. 

N.  S.  183    276 

Herring   v.    Hoppock,    15    N.   Y. 

409    219,  231 

Hersey  v.  Marty,  61  Minn.  430-.  324 
Hess  v.  Rothschild,  34  Misc.  R. 

(N.  Y.)   800    377 

Hess    v.    Schaffner     (Tex.    Civ. 

App.  1911),  139  S.  W.  1024.120.  l29 
Hess's  Estate,  150  Pa.  St.  346-.     44 

Hess's  Estate,  69  Pa.  St.  272 166. 

Hesselgrave  v.  State   (Neb.),  89 

N.  W.   295    433 

Hesser  v.  Rowley,  139  Cal.  410  222 
Hetfield  v.  Dow,  27  N.  J.  L.  440  399 
Hetherington  v.  Hixon,  46  Ala. 

297    191 

Heustis  V.  Rivers,  103  Mass.  398  407 
Hewitt,  In  re,  25  N.  J.  Eq.  210-  -  156 
Hibernian  Bank  v.  Lacombe,  84 

N.  Y.  368    212 

Hickbone    v.    Fletcher,    66    Me. 

209    194a 

Hickerson    v.    Price,    2    Heisk. 

(Tenn.)  623 247. 


502 


Table  of  Cases. 


Sec. 
Hickman    v.    McCurdy,    7    J.    J. 

Marsh  (Ky.)   555   198 

Hicks  V.  Chouteau,  12  Mo.  341. .  27 
Higgins  V.  Drucker,  22  Ohio  Cir. 

Ct.  R.   112    67a 

Higgins  V.  State,  87  Ind.  282 263 

Highland  Park  Bank  v;  Sheahen, 

149  III.  App.  225.. 99,  113,  114,  121 
Hightower  v.  Ogletree,  114  Ala. 

94   146 

Hightown  v.  Moore,  46  Ala.  387  85 
Hellert  v.  Hained,  143  Ky.  3...  398 
Hildreth  v.  State,  5  Blackf.  80-  •  419 
Hill  V.  Dunham,  7  Gray  543. ..  .  48 
Hill     V.     Hoeldtke     (Tex.     Sup. 

1911),  142  S.  W.  871    387 

Hill    V.    Ragland,    24    Ky.    Law 

Rep.   1053    324 

Hill  V.  Wright,  23  Ark.  530 11 

Hill  V.  Wright,  144  Ky.  806  ....  378 
Hilleburton    v.    Carter,    55    Mo. 

435    212 

Hillegas  v.   Stephenson,  72  Mo. 

118  206 

Hill    Mercantile    Co.    v.    Rotan 

Grocery    Co.    (Tex.    Civ.    App. 

1910),  127  S.  W.  1080.... 348,  350 
356,  362 

Himrod  v.  Baugh,  85  111.  435 144 

Hinckley  v.  Kreitz,  58  N.  Y.  583     73 

225,  229 
Hindman    v.    Lewman,    23    Ky. 

Law  Rep.  179  65 

Hineley  v.  IMargaritz,  3   Pa.   St. 

428   24 

Hines  v.  Mullins,  25  Ga.  696-  -59,  266 
Hinton  v.  Odenheimer,  4  Jones 

Eq.  (N.  C.)  406 406 

Hirsch  v.  Carpet  Co.,  82  111.  App. 

234    341,  384 

Hodge  V.  People,  78  111.  App.  378  334 

Hodges  V.  Gewin,  6  Ala.  478 232 

Hodges  V.  State,  20  Tex.  493 417 

Hodgson  V.  Baldwin,  65  111.  532  202 
Hodgson   V.   Shaw,  3  Myl.  &  K. 

183   130,  153,  178 

Hoey  V.  Jarman,  39  N.  J.  L.  523     66 


Sec. 
Hoffman  v.  Fleming,  66  Ohio  St. 

143   257 

Hoffman  v.  Habighorst,  49  Oreg. 

379   11$ 

Hoffman  v.  Habighorst,  38  Oreg. 

261 2 

Hoggart  V.  Thomas,  35   La.  Ann. 

298    382 

Hogshead   v.   Williams,    55    Ind. 

145   114 

Hogue  V.  Davis,  8  Gratt.     (Va.) 

4  210 

Hogue  V.  State,  28  Ind.  App.  285  301 

Hoil  V.  Bailey,  58  Wis.  434 395 

Holandworth  v.  Commonwealth, 

11  Bush.  (Ky.)   617  27 

Holden  v.  Curry,  85  Wis.  504.65,  243 
Holden  v.  Jones,  7  Ired.  L.    (N. 

C.)    191   306 

Holker  v.  Hennessy,  141  Mo.  527  323 
Holland   v.    Colton    State   Bank, 

20  S.  D.  325 24 

Holliday    v.    People,    10    111.    (5 

Gil.)    214    418,  420 

Hollier  v.  Eyre,  9  Ch.  &  F.  1 170 

Holliman  v.  Carroll,  27  Tex.  23.  324 
Holliman  v.  Rogers,  6  Tex.  91.  •  178 
Hollinsbee    v.    Ritchey,    49    Ind. 

261   173 

Hollister  v.  Davis,  54  Pa.  St.  508  144 
Holm  V.  Jamieson,  173  111.  295.  .  351 
Holmes  v.  Chadbourne,  4  Me.  10  405 
Holmes  v.  Day,  108  Mass.  563  •  •  168 
Holmes  v.  Rhodes,  1  Bos.  &  P. 

638    182 

Holmes  v.  Standard  Oil  Co.,  183 

111.  70 74,  327 

Holmes  v.  State,  17  Neb.  73 53 

Holmes   v.   Ward,   24   Barb.    (N. 

Y.)    546    183 

Holmes   v.   Weed,    19   Barb.    (N. 

Y.)   128   11 

Holmes  v.  Williams,  177  111.  386  361 

3"4 
Holt  v.  McLean,  75  N.  C.  347 ...  ■  320 
Holt  Co.  v.  Scott,  53  Neb.  176- •   304 


Table  of  Casew. 


503 


Sec. 
Holthouse    V.    State    (Ind.    App. 

1912),  97  N.  E.  130. 77,  100,  110,  301 
Homan  v.  Brinckerhoff,  1  Denio 

(N.  Y.)   184    221 

Home    V.    Farrington,   82    N.    Y. 

121    127 

Home  Ins.  Co.  v.  Gow,  59  Pa.  St. 

685   292 

Home    Ins.    Co.    v.    Holway,    55 

Iowa   571    60,  288 

Home  Nat.  Bank  of  Chicago  v. 

Estate  of  Waterman,   134  111. 

461   113 

Home  Savings  Bank  v.  Traube, 

75  Mo.  199   79 

Homer  v.  Bank,  7  Conn.  484-.  151 
Homes  v.  O'Conner,  9  Tex.  Civ. 

App.   454    253 

Hood  V.  Hood,  85  N.  Y.  561-  .242,  244 
Hood  V.  Mathis,  21  Nev.  308. 226,  228 
Hook  V.  Riches'on,  115  111.  431..  338 
Hooker  v.  Russell,  67  Wis.  257-  •   392 

393 
Hooper    v.    Hooper,    29    W.    Va. 

276 245 

Hooper  v.  Hooper,  81  Md.  155..  211 

339,  356,  371 

Hooper  v.  Pike,  70  Minn.  84-  .35,     42 

Hoover  v.  Epler,  52  Pa.  St.  522  157 

191 
Hoover  v.  Mowser,  84  Iowa  42  •  .  208 
Hopewell    v.    McGrew,    50    Neb. 

789   66,  67,  222 

Hopkins  v.  Farwell,  32  N.  H.  425  178 
Hopkins  v.  Leek,  12  Wend.    (N. 

Y.)   105   347 

Horan  v.  People,  10  111.  App.  21  324 
Hormel     &     Co.     v.     American 

Bonding  Co.,  112  Minn.  288..  144a 
Horner  v.  Dipple,  31  Ohio  St.  72  24 
Horner  v.  Lyman,  4  Keyes    (N. 

Y.)   237   227 

Horst  V.  Lewis,  71  Neb.  365 30 

Horton  v.  Stone,  32  R.  I.  499...     52 
54,  56,  238 

Hortsell  v.  State,  45  Ark.  59 431 

Rosea  v.  Rowley,  65  Mo.  357..  121 


Sec. 
Hosie  v.  Hart,  141  Mich.  679..  65 
Hoss   V.  Crouch   (Tenn.),  48  S. 

W.  724.  .  .  .    130 

Hotchkiss   V.   Barnes,   34   Conn. 

27 354 

Hotel  Milton  Co.  v.  Powell  (Mo. 

App.  1910),  123  S.  W.  953....  Ill 
Hotham  v.  Berry,  82  Kan.  412.  196 
Houck  V.  Graham,  123  Ind.  277.  77 
Houck  V.  Graham,  106  Ind.  195.       3 

194a,  203 
Hough  V.  Ins.  Co.,  57  111.  518..  155 
Houghton  V.  Freeland,  26  Grant 

Ch.  500 316 

Houghton    V.    Milburn,    54    Wis. 

554 358 

Housh  V.  People,  66  111.  178.65,  243 
Houston    V.   Braden    (Tex.    Civ. 

App.),  37  S.  W.  467 99 

Howard   v.   Fletcher,   59   N.    H. 

151.  ... 93 

Howard  v.  Smith,  91  Tex.  8...   350 
Howard  v.  United  States,  184  U. 

S.  676 329 

Howard  County  Com'rs  v.  Hill, 

88  Md.  Ill 66,  67,  285,  311 

Howe  V.  Nichels,  22  Mo.  175-..     45 

348,  352 
Howe     V.     Peabody,     2     Gray 

(Mass.)   556 257 

Howe  V.  Taggart,  133  Mass.  284.     43 
Howe  V.  White,  162  Ind.  74.259,  265 

Howell  V.  Field,  70  Ga.  592 397 

Howell  V.  Parsons,  89  N.  C.  230  298 
Hubbard  v.   Carpenter,  5  Barb. 

(N.  Y.)  520.  .  .   132 

Hubbard   v.  Elden,   43   Ohio   St. 

380.  .  .  . 324 

Hubbard  v.  Gurney,  64  N.  Y. 

457 122,  171 

Hubbard  v.  Haley,  96  Wis.  578.   348 

353,  364 
Hubbard  v.- Hart,  71  Iowa  668-.  125 
Hubbard    v.    Switzer,    47    Iowa 

681.  .  .  .    333 

Huckabee  v.  May,  14  Ala.  263  •  •   358 


504: 


Table  of  Cases, 


Sec. 
Huddleson  v.  Polk,  70  Neb.  483. 

97  N.  W.  624   325 

Hudson  V.   Aman    (N.  C.   1912), 

74  S.  E.  97 148,  187,  197 

Hudson  V.  Winslow,  35  N.  J.  L. 

437 60 

Huey  V.  Pinney,  5  Minn.  310 145 

Huff  V.  Cole,  45  Ind.  300 103 

Huff  V.  Simmers,  114  Md.  548..    386 
Huffman  v.  People,  78  111.  App. 

345 244 

Huggins  V.  People,  39  111.  241..    411 

431 
Hughes  V.  Ladd,  42  Oreg.  123.28,  35 
Hughes    V.    Littlefield,     18    Me. 

400 5,     39 

Hughes  V.  People,  82  111.  78...   330 
Hughes    V.    State,    28    Tex.    Civ. 

App.  499 414 

Hughlett   V.   Huglilett,   3   Humph. 

(Tenn.)  452 246 

Hulburt  V.  Kephart,  50  Colo.  353     35 
Hulet  V.  Soullard,  26  Vt.  295...   178 
Hull   V.   Massachusetts  Bonding 
&    Ins.    Co.    (Kan.    1912),    120 

Pac.  544 442 

Hull  V.  Parker,  37  Mich.  590...    129 
Humboldt  Sav.  &  Loan  Society 

V.  Wennerhold,  81  Cal.  528-  .  .     75 
Hume  V.  Perry   (Tex.  Civ.  App. 

1911),  136  S.  W.  594..  . 85 

Humphries   v.    State    (Tex.   Civ. 

App.  1902),  69  S.  W.  527 .    433 

Hun  v.  Nichols,  1  Salk.  289...     57 
Hungerford  v.  O'Brien,  37  Minn. 

306 349 

Hunt    v.    Adams,    5    Mass.    519, 

523 86 

Hunt     v.     Bridgham,     2     Pick. 

(Mass.)    581 90 

Hunt  v.  Ford,  142  Mo.  238 382 

Hunt  V.  Gardner,  39  N.  J.  L.  530  111 
Hunt    V.    Postlewait,    28     Iowa 

427 49 

Hunt  V.  State  ex  rel.  City  of  An- 
derson,  124   Ind.  306. 76,  318 


Sec 
Hunter  v.  Clark,  28  Tex.  163...  131 
Hunter  v.  First  National   Bank 

of  Ft.  Wayne,'  172  Ind.  62.51,  133 
Hunter  v.  Robertson,  30  Ga.  479  90 
Hunter  v.  United  States,  5  Pet. 

(U.    S.)    173. 338 

Huntington    v.    Knox,    7    Cush. 

(Mass.)  374.  ...   358 

Huntley  v.  Sanderson,  1   Cr.  & 

M.   467.    .   . .      11 

Hurd  v.  Little,  12  Mass.  502...   123 
Hurlburt    v.    Kephart,    50    Colo. 

353.  .  .  .   ..59,     67 

Hurst  Hardware  Co.  v.  Goodman, 

()8  W.  Va.  462,   398 

Husbands     v.     Commonwealth, 

143  Ky.  290   414,  429,  434 

Huse  v.  Ames,  104  Mo.  91..  180,  195 
Hutchcraft    v.    Shrout,    1    Mon. 

206 260 

Hutchinson  v.  Roberts,  8  Houst 

(Del.),  459.  .  .    3 

Hutchinson    v.    Woodwell,     107 

Pa.  St.  509.  .  .   128 

Hutchinson  v.  Wright,  61  N.  H. 

108.  ... 116 

Hutson  v.  Jenson,  110  Wis.  26.  259 
Huyler  v.  Atwood,  26  N.  J.  Eq. 

504 11 

Hyatt  V.  Bonham,  19   Ind.  App. 

256 385 

Hyde    v.    Equitable   Life   Assur, 

Soc,  61  Misc.  R.  518   382 

Hyde  v.  Grench,  62  Md.  577.  ..  .  2 
Hyde  v.  Miller,  168  N.  Y.  590  .  .  100 
Hyde  v.  Miller,  45  App.  Div.  (N. 

.  Y.)    396.  .   . 100 

Hyde    v.    Tracy,    2    Day    (Conn.) 

492 ........" 202 

Hyer  v.   Smith,  3  Cranch  C.   C. 

437 411 

Hyland    v.    Habich,    150    Mass. 

112 87,  306,  346,  368 

Hyman  v.  Dooley,  77  Md.  162-  .  .   348 


Table  of  Cases. 


505 


I.  ^EC 

Ida    County    Savings    Bank    v. 

Seidensticker,  128  Iowa  54    ■  •     70 

141 
Ide    V.    Churchill,    14    Ohio    St. 

372.    .   .   .    133 

Illinois  Industrial  Home  for  the 

Blind  V.  Dreyer,  150  111.  574-  •    305 
Illinois    Surety    Co.    v.    Garrard 

Hotel   Co.    (Ky.    1909),   118   S. 

W.  967 101,  144a 

Imming  v.  Fieldler,  8  111.  App. 

256.   ...    145,  146 

Independent     School     Dist.     v. 

Hubbard  (Iowa),  81  N.  W.  241  292 
Indiana   Trust    Co.    v.    Finitzer, 

160  Ind.  647.   .  .    .••• 374,  398 

Ingersoll   v.   Roe,   65   Barb.    (N. 

Y.)    346.  .  .    32 

Ingersoll    v.    Seatoft,    102    Wis. 

476 321 

Ingles  V.  State,  61  Ind.  212 316 

Ingles  V.  Sutliff,  36  Kan.  444-.     46 

47,  114 
Ingraham   v.   Baldwin,   9   N.   Y. 

45.   .   .   .    25 

Ingram  v.  State,  27  Ala.  17.424,  426 
Inhabitants  v.  Bell,  9  Met.  490.  69 
Inhabitants  v.  Wilson,  13  Gray 

385 324 

Inman  v.  Sherrill,  29  Okla.  116  323 
In    re   Hughes   Estates,    13    Pa. 

Super.   Ct.   240. 39 

In  re  Merwin,  10  Daly   (N.  Y.) 

13 281 

In  re.     See  name. 
Insurance  Co.  v.  Colt,  20  Wall. 

(U.  S.)   560.   . 400 

Iowa  National  Bank  v.  Cooper, 

(Iowa  1906)  70  N.  W.  625-  ••  •  153 
Irby  V.  Livingston,  81  Ga.  281.  338 
Iredell    v.    Barbee,    9    Ired.    L. 

230.    .    .    .    59,  266 

Irick  V.  Black,  17  N.  J.  Eq.  189.  145 
Iron   V.   Yell    (Civ.   App.    1910), 

132  S.  W.  69.  .    130 


Sec. 
Iron  City  National  Bank  v.  Raf- 

ferty,  270  Pa.  St.  238. 3a 

Irvine  v.  Adams,  48  Wis.  468-.  171 
Irwin    V.    Backus,    25    Cal.    214, 

259 65,  243,  259 

Isett    V.    Hoge,    2    Watts    (Pa.) 

128.   ...    4 

Ishmael  v.  State,  41  Tex.  244..  419 

Ives  v.  Hulce,  17  111.  App.  35-.  226 

J. 

Jack  v.  People,  19  111.  57 27 

Jack    V.    Sinsheimer,    125     Cal. 

563.   .   .   .    351,  356 

Jackson  v.  Benson,  54  Iowa. 654  128 
Jackson  v.  Cooper,  19  Ky.  Law 

Rep.  9.  .  .    41 

Jackson    v.    Hampton,    10    Ired. 

(N.    C.)    L.    579    406 

Jackson  v.  Jackson,  7  Ala.  791.  39 

40  42 
Jackson  v.  Jackson,  51  Vt.  253  185 
Jackson  v.  Patrick,  10  S.  C.  197  67 
Jackson  v.  State,  52  Kan.  249..  431 
Jackson  v.  Wilson,  117  Ala.  432.  244 
Jackson  v.  Yandes,  7  Blackf. 

536 348 

Jacob  V.  Curtis,  67  Conn.  497-  126 
Jacobs    V.    Hill,   2    Leigh.    (Va.) 

393 65,     71 

Jacobson  v.  Anderson,  72  Minn. 

426.    .   .   . 265 

Jacobson  v.  Cooper,  19  Ky.  Law 

Rep.    9 36 

Jacbus     V.    Jamestown     Mantel 

Co.,     149    App.    Div.     (N.     Y.) 

356 28,     30 

Jaffray  v.  Brown,  75  N.  Y.  303.  42 
Jaffray  v.  Crane,  50  Wis.  349-.  113 
Jaffray  v.  Smith,  106  Ala.  112-.  223 
James  v.  Badger,  1  Johns.  Cas. 

(N.  Y.)  131.  .  . 123 

James    v.    Calder,    7    Ga.    App. 

707 144a 

James    v.    Kennedy,    10    Heisk 

(Term.)   607 220 


506 


Table  of  Cases. 


Si.:c. 
Jjunes  V.  Little,  \'Mi  Ua.  672  ....  246 
James  v.  State,  65  Ark.  415.74,  269 
James  v.  West,  67  Ohio  St.  28-  •  253 
Jameson    v.    Bartlett,    63    Neb. 

638 235a 

Jamison  v.   Crosby,  11  Humph. 

(Tenn.)    273.  .  .  .    ...........   260 

Jarvis  v.  Hyatt,  43  Ind.  163....   363 

Jarumsch  v.   Otis  Iron  &   Steel 

Co.,  23  Ohio  Cir.  Ct.  R.  122..   377 
Jaycox  V.  Trembly,  42  App.  Div. 

(N.  Y.)    416.  .  . 37 

Jefferson   v.   Stagle,   66   Pa.   St. 

202.      .  .    S91 

Jeffries  v.  Lawson,  39  Miss.  791  23 
Jenkins  v.  American  Surety  Co., 

45  Wash.  573.  . 112b,  112f,  186 

Jenkins  v.  Clarkson,  7  Ohio  72.  119 
Jenkins    v.    Daniels,    125    N.    C. 

161.  .  .  .   113 

Jenkins  v.  Jensen,  24  Utah  108.  253 
Jenkins  v.  Simonds,  29  Ind.  294  333 
Jenkins  v.  State,  76  Md.  255.65,  243 
Jenkins,  Appeal  of    (Ind.  App.) 

58   N.   E.   560    325 

Jennings     v.      Parr,    62     S.     C. 

306  .  .     .. •  .  .244,  246,  259 

Jerauld  v.  Trippet,  62  Ind.  122.  131 
Jeudevine  v.  Rose,  36  Mich.  54  87 
Jewell    V.    Mills,    3    Bush    (Ky.) 

62.  .  .  . 323,  324 

Jewett  V.  Comforth,  3  Me.  107.  187 
Jewett  V.  Whitman,  35  Barb.  (N. 

Y.)  208.  .  .  150 

Jex  V.  Straus,  122  N.  Y.  293.82,  357 
John  Church  Co.  v.  Dorsey,  38 

Misc.  R.    (N.  Y.)    542.. 235a 

Johns  V.  Jones,  16  Ala.  454..  •  •  207 
Johnson    v.    Bank,    2    B.    Mon. 

(Ky.)    311.  .  .  .    102 

Johnson  v.  Bobbitt,  81  Miss.  339, 

33  So.  73.  .  .  310 

Johnson  v.  Flint,  34  Ala.  673..  228 
Johnson  v.  Franklin  Bank,  173 

Mo.   171 113 

Johnson    v.    Fuquay,     1     Dana 
(Ky.)   514 247 


Seo. 
Johnson    v.    Harvey,    84    N.    Y. 

363 200,  201 

Johnson      v.      Huntington,      13 

Conn.  40.  .  .  .    217 

Johnson  v.  Johnson,  24  Ky.  Law 

Rep.   16.   .   .    26? 

Johnson  v.  Johnson,  31  Ohio  St. 

131.  ... 54 

Johnson    v    Kimball,    39    Mich. 

187.  .  .      .    54 

Johnson  v.  May,  76  Ind.  293.  .  .  67 
Johnson  v.  Ramsey,  43  N.  J.  L 

280 210 

Johnson  v.  Vaughn,  65  111.  425  194a 

197 
Johnson  v.  Weatherwax,  9  Kan. 

75 50,     54 

Johnson  v.  Williams  Admr.,  23 

Ky.  Law  Rep.  658.  .    325 

Johnson    v.    Young,    20    W.    Va. 

614.   ... 2 

Johnson  County  v.  Chamberlain 

Banking  House,  80  Neb.  96-.     28 

51,  78 
Joliet,  Etc.  R.  R.  Co.  v.  Healy, 

94  111.  416.  .  .    156 

Jolly  V.  Walker,  26  Ala.  690 381 

Jones  V.  Ashford,  79  N.  C.  172.  •  359 
Jones  V.  Bacon,  145  N.  Y.  446.  .  382 
Jones  V.  Bangs,  40  Ohio  St.  139  107 

Jones  V.  Bank,  29  Conn.  25 151 

Jones  V.  Berryhill,  25  Iowa  289.  357 
Jones   V.    Blanton,   41    N.    C.    C? 

Ired.   L.)    115    203,  260 

Jones  V.  Boyd,  40  Ohio  St.  139.  100 
Jones     V.     Bradford,     25     Ind. 

305 166,  198 

Jones  V.  Britt,  168  Fed.  852 42 

Jones    V.    Crosthwait,    17    Iowa 

393 92,  135,  376 

Jones  V.  Ellis,  10  Ad.  &  El.  382.   408 

.Jones  V.  Foster,  175  111.  456 11 

Jones  V.  Gaines,  92  Ark.  519.  •■144a 
Jones   V.   Gallatine  Co.,   78   Ky. 

491 308 

Jones  V.  General  Const.  Co.,  150 

Iowa  194    377 


Table  of  Cases. 


507 


Jones  V.  Hays,  3  Ired.  L.  (N.  C.) 

502 260 

Jones  V.  Joyner,  8  Ga.  562..-    185 
Jones  V.  Keer,  30  Ga.  93......    129 

Jones     V.     McLaughlin-Patrick 

Const.  Co.,  99  111.  App.  320-  -  .   381 

386 
Jones  V.  Orchard,  16  C.  B.  614-  .   415 

416 
Jones  V.  Sarchett,  61  Iowa  520.  116 
Jones  V.  Savage,  10  Daly  (N.  Y.) 

621.   .    . 27 

Jones    V.    Scanland,    6    Humph. 

(Tenn.)    195     304 

Jones  V.  Shorter,  1  Ga.  294 383 

Jones  V.  Spitters,  9  Ga.  App.  473  238 
Jones  V.  State,  11  Tex.  Cr.  App. 

412 431 

Jones     V.     Trimble,     3     Rawle 

(Pa.)  388.  .  .  . .   176 

Jones  V.  United  States,  18  Wall. 

(U.  S.)    662    314 

Jordan    v.    Dobbins,    122    Mass. 

168 87,  306,  346,  367,  368 

Jordan  v.  Jordan,  10  Lea,  124  •  .  51 
Jordan  v.  Walters  (Iowa),  80  N. 

W.  530 103 

Joslin  V.  Car  Spring  Co.,  36  N. 

J.  L.  141.  .  .   12 

Joslyn  V.  Collinson,  26  111.  61  ■•  36 
Joslyn  V.  Eastman,  46  Vt.  258-.  224 
Joyce  V.  Joyce,  1  Bush  (Ky.)  474  178 
Judah    V.    Zimmerman,   22    Ind. 

388. 67,  362 

Judge  V.  Heydock,  8  N.  H.  491.  245 
Judge  of  Probate  v.  Lee,  72  N. 

H.   247 258 

Judge  of  Probate  v.   Sulloway 

68  N.  H.  511 1,  243,  251,  252 

Jungk  V.  Reed,  9  Utah  49 365 

K. 

Kadish  v.  Garden  City  Equitable 
Loan  &  Bldg.  Assn.,  151  111. 
531.  ...   30 

Kagey  v.  Trustees,  68  111.  75...   303 


Sec. 
Kalso  V.  Kalso,  16  Ind.  App.  615  208 
Kane    v.    Railroad    Co.,    5    Neb. 

105.   .   .   . 325 

Kane  v.  Williams,  99  Wis.  65..  364 
Kansas    City    v.    Davidson,    154 

Mo.   App.   269.   . 67 

Kansas    City    Hydraulic    Press 

Brick  V.  National  Surety  Co. 

(U.  S.  C.  C.)   149  Fed.  507 112 

Kansas   Mfg.    Co.    v.    Gandy,  11 

Neb.   448 42 

Kapp  V.  Ins.  Co.,  113  111.  390...  143 
Karglin  v.  Fuller,  14  N.  J.  Eq. 

419 171 

Kassing  v.  Bank,  74  111.  16 189 

Katz  V.  Massinger,  110  111.  372.  163 
Kauffman    v.    Cooper,    46    Neb 

644.    .    .    .    112 

Kaufman  v.  Wilson,  29  Ind.  504  146 
Kaufmann  v.  Kowan,  189  Pa.  St. 

121.  .  .  .    102,  113 

Kay  V.  Allen,  9  Pa.  St.  320 348 

Kearnes   v.   Montgomery,   4   W. 

Va.  29.  .  .  .  4 

Kearsley  v.  Cole,  16  Mees  &  W. 

128 116 

Keedle  v.  Flack,  27  Neb.  836...  12 
Keefhauer    v.    Lone,    2    Pa.    St. 

241.  ...    427 

Keegan  v.  Smith,  67  N.  Y.  Supp. 

281.   .  .  .    253 

Keel  V.  Larkin,  72  Ala.  493..  160,  161 
Keenan  v.  Empire  State  Surety 

Co.,    62   Wash.    250 101,  112c 

Keighler    v.    Savage    Manf.    Co., 

12   Md.   383.   .    95 

Keil  V.  Healey,  84  111.  104 24 

Keith    V.    Henkleman,    173     111. 

137.  .  .  .   233 

Kellar    v.    Williams,     10    Bush 

(Ky.)   216.  .  .  .    204 

Keller    v.    Ashford,    133    U.    S. 

610 12,  13,     21 

Kelley   Mans  &   Co.   v.   O'Brien 

Varnish  Co.,  90  111.  App.  287.  .     28 


508 


Table  of  Cases. 


Sec 
Kellogg    V.    American    Ins.    Co. 

62  N.  J.  Eq.  811.    ••  ••      72 

Kellogg   V.    Kimball,    142    Mass. 

124.  ...    217 

Kellogg  V.  Lopez,  145  Cal.  497.3,  35 
Kellogg   V.    Olmstead,   25    N.   Y. 

189 49 

Kellogg   V.    Scott,    58   N.   J.   Eq. 

344 72,     79 

Kellogg  V.  State,  43  Miss.  57 421 

Kellum  V.  Clark,  97  N.  Y.  390.  .  69 
Kelly  V.  Gillespie,  12  Iowa  55.-  171 
Kelly  V.  Gankler,  1C4  Mich.  519.  .  224 
Kelly      V.      Gordon,       3     Head 

(Tenn.)    683.    .    . 234 

Kelly  V.   Page,  7   Gray    (Mass.) 

213.  .  .  .    ......166,  198 

Kelly  V.  Schupp.  60  Wis.  76 391 

Kelly  V.  State,  25  Ohio  St.  567..  303 
Kelso  V.  Flaney,  104  Ind.  180.-  385 
Kempner  v.   Patrick   (Civ.  App. 

1906),  95  S.  W.  51    100 

Kenan  v.  Carr,  10  Ala.  867- -.  407 
Kenck  v.  Parchew,  22  Mont.  519  51 
Kendall    v.    Aleshive,    28    Neb. 


707 


Kendall   v.    Lawrence,   22    Pick. 

(Mass.)    540.    .   .    ••..   376 

Kendrick    v.    Forney,  22  Gratt. 

(Va.)    748.  .   .   .    164,  186 

Kendrick  v.  Rice,  16  Tex.  254..  188 
Kennedy     v.     Adams,     5     Harr 

(Del.)    100.   .   .   . 408 

Kennedy  v.  Adickes,  37  S.  C.  174  253 
Kennedy  v.  Brown,  21  Kan.  171     65 

238 
Kennedy  v.  Falde,  4  Dak.  319..  2 
Keogh,   Matter   of,   22    Misc.    R. 

(N.  Y.)   747 441 

Keokuk  "v.  Love,  31  Iowa,  119-.    152 

157,  164 
Keokuk   County    State    Bank   v. 

Hall,  106  Iowa  540. 135 

Kernochan  v.  Murray,  111  N.  Y. 

306 . 345 


Sec 
Kerr      v.      Clark,      11      Humph. 

(Tenn.)    77.  .  .  .    212 

Kerr  v.  Hough,  22  Ky.  Law  Rep. 

1693 ..    189 

Kerr  v.  Moon,  9  Wheat.   (U.  S.) 

565.    .    .    .     245 

Kersham    v.    Conklin,    40    Conn. 

81 206 

Kerwin  ex  parte,  8  Cow  (N.  Y.) 

118   ... 56 

Kesler  v.  Cheadle,  12  Okla.  489.  381 
Kester  v.  Hill,  42  W.  Va.  611-  ■  .  261 
Kewaunee   v.    Knipfer,    37    Wis. 

496    314 

Keyeser  v.  Keen,  17  Pa.  St.  327.  54 
Kidd   V.    Hinley,   54    N.    J;    Eq. 

177 ■145.  149 

Kiernan  v.  Kratz,  42  Oreg.  474.  381 
Kilbride  v.  Moss,  113  Cal.  432..  381 
Kilgrow  V.  State,  49  Ala.  337..  419 
Killum  V.  Clark,  97  N.  Y.  390..  70 
Kilson  V.  Farwell,  132  111.  337.  320 
Kimball  v.  Baker,  62  Wis.  526-.     77 

362 
Kimball    v.    Tsewall,    7    Hill    (N. 

Y.)    116.   .   .    92,  376 

Kimble     v.     Cummins,     3     Met. 

(Ky.)    327    177,  371 

Kimmel  v.  Lowe,  28  Minn.  265..  163 

182,  372 

Kincaid  v.  Yates,  63  Mo.  45 103 

Kincheloe  v.  Holmes,  7  B.  Mon. 

9 355 

Kindle  V.  State,  7  Blackf.  (Ind.) 

566 313 

King  v.  Baker,  7  La.  Ann.  571-  .  325 
King  V.  Baldwin,  17  Johns.    (N. 

Y.)    384.   .  .  . .  .  ■  •    145 

King  V.   Baldwin,   2   Johns.   Ch 

(N.  Y.)   554.  .  .    .  .. 165,  170 

King  V.  Clark,  5  B.  &  A.  728 427 

King   V.    Newman,    54    Ohio    St. 

373 361 

King  V.  Nichols,  16  Ohio  St.  80  328 
King  V.   vSawyer,  1  Ala.  App.  439  325 

334 


Table  of  Cases. 


509 


Sec. 
King  V.  Stale,  18  Neb.  375.. 414,  429 
King  V.  Summitt,  73  Ind.  312..  376 
King  V.  United  States,  99  U.  S. 

229.    .    .    .    337 

King  Co.  V.  Terry,  5  Wash.  536.   301 

305,  313 
Kingle    &    Clark    Drug    Co.    v. 

Meyers  (Tex.  Civ.  App.  1911), 

140  S.  W.  463   322 

Kingman   v.   Peoria  County,   96 

111.  App.  417.  .  . 301 

Kingman   St.   Louis   Implement 

Co.  V.  McMaster,  118  Mo.  App. 

209   123 

Kingsbury  v.  Westgate,  61  N.  Y. 

336.  .   .   .    82 

Kingsbury  v.  Williams,  53  Barb. 

(N.  Y.)   142.  ...    81 

Kinney     v.     Ensign,     18     Pick. 

(Mass.)    232.   .  . 252 

Kinney  v.  United  States  Fidelity 

&  G.  Co.,  182  Fed.  1005 333 

Kinsley  v.   Brown,   95   111.   App. 

516 ■   377 

Kinzie   v.    Rileys   Exr.,    100   Va. 

709 144 

Kirby  v.  Landis,  54  Iowa  150.  ■  .  125 
Kirby  v.  Studebaker,  15  Ind.  45  114 
Kirkham    v.    Marter,   2   Barn   (1l 

Aid.  613.  .  . 401 

Kirkpatrick  v.  Howk,  80  111.  122  130 
Kirschbaum  v.  Blair,  98  Va.  35.  67 
Kirschman  v.  Conklin,  40  Conn. 

81 210 

Kisner  v.  Pullen,  9  Daly  (N.  Y.) 

485 .      43 

Kissire  v.  Plunkett-Jarrell  Gro- 
cer Co.  (Ark.  1912),  145  S.  W 

567.  .  .  .14,  35,  42,  113,  121,  152  157 
Kiton  V.  Julian,  4  El.  &  B.  854. .     70 

Klein  v.  Currier,  14  111.  237 341 

Klein  v.  German,  National  Bank, 

69  Ark.  140 59a 

Klein  v.  Long,  27  App.  Div.  (N. 

Y.)   158 117 

Klingensmith    v.    Klingensmith, 

31   Pa.   St.   460.  . 133,  145 


Sec. 
Knapp  V.  Swaney,  56  Mich.  345.  112 
Knapp  &  Co.  v.  Tidewater  Coal 

Co.      (Conn.     1912).     81     Atl. 

1063 28,     30 

Kneisley   Lumber   Co.   v.    Stad- 

dard  Co.,  131  Mo.  App.  15 26 

Knickerbocker     v.     Wilcox,     83 

Mich.  200.  ...   28,     29 

Knight    V.    Dunsmore,    12    Iowa 

35.   .   .   . 347 

Knight  V.  Morrison,  79  Ga.  55..  163 
Knight    V.     Nelson,    117    Mass. 

458.   .   .   . 231 

Knight  V.  Weeks,  115  Fed.  970.  196 
Knight  &   Jilson   Co.   v.   Castle, 

172  Ind.  97.  . .129,  144a 

Knopf  V.  Morel,  111  Ind.  570.-  a 
Knowlton  v.  Husey,  76  Me.  345.  340 
Knox      V.      Vallandingham,      13 

Smead.  &  M.    (Miss.)    520....    199 

Koch,  Estate  of,  148  Wis.  548..    194 

194b,  197,  200,  208 

Koch  V.  Roth,  150  111.  212 97 

Kock  V.  Block,  29  Ohio  St.  565.  185 
Koehler  v.  Reinheimer,  20  Misc. 

R.  62   30 

Koehler  &  Co.  v.  Reinheimer,  26 

App.  Div.   (N.  Y.)   1 30 

Koenig  v.  Stickel,  58  N.  Y.  475.  409 
Konitzky    v.     Meyer,     49     N.     Y. 

571.  ...  174,  188,  194a 

Koone  v.  Seward,  8  Watts  (Pa.) 

388 405 

Koppitz-Melchers    Brewing    Co. 

V.  Schultz,  68  Ohio  St.  407 100 

Kornsmeyer,    Etc.    Co.    v.     I\Ic- 

Cay,  43  Neb.  649 112 

Kracht  v.  Empire  State  Surety 

Co.    (Wash.)    1911),    113    Pac. 

773 112a 

Krafft     V.     Citizens'     Bank     of 

Dyersburg,  139  App.  Div.   (N. 

Y.)   610.  .  .  .   356 

Kraft  v.  Creighton,  3  Rich.    (S. 

C.)    273.  .  . 179 

Kramer  v.  Bank,  15  Ohio  253..   189 


510 


Table  of  Cases. 


Kramph     v.    Hatz,    52     Pa.     St. 

525  2,  4,  sng 

Krigler  v.  Prien,  62  Wis.  248.  264 
Kroncke    v.    Madsen,     56     Neb. 

609 1,     67 

Kunz  V.  Boll,  140  Wis.  69 112e 

Kurtz  V.  Forquer,  94  Cal.  91...     54 

L. 

Lackey  v.  Boruff,  152  Ind.  371  •  •      35 

40 
Lackey  v.  Steere,  121  111.  598..     92 

Lacy  V.  Loftus,  26  Ind.  324 14 

Lacy  V.  Rollins,  74  Tex.  566 3 

Lacy  V.  Stamper,  27  Gratt.  (Va.) 

421    253 

Ladd  V.  Trustees,  80  111.  233. 126  301 
Lafarge  v.   Dillenbeck,  3   Denio 

(N.  Y.)   157   95 

Lafayette  v.  James,  92  Ind.  240     66 

312 
Lafayette  Mutual  Bldg.  Ass'n  v. 

Klemhoffer,  40  Mo.  App.  388.  .     41 

76 
Laffan  v.  United  States,  122  Fed. 

333   309 

Laingor   v.    Lowenthal,    151    111. 

App.  599    40,  342 

Lake  v.  Thomas,  84  Md.  608 51 

Lake  Charles  Planing  Mill  Co. 

V.  Grand  Lodge,  127  La.  238.  .  112 
Lake  County  v.  Neilon,  44  Oreg. 

14 337 

Lakenan     v.      North     Missouri 

Trust    Co.,    147    Mo.    App.    48, 

126  S.  W.  547    130,  152 

Lakeside    Land    Co.    v.    Empire 

State    Surety    Co.,    105    Minn. 

213   443 

Lamb  v.  Carley,  35  App.  Dlv.  (N. 

Y.)   503   348 

Lamb    v.    Morris     (Harrison    v. 

Harrison),  118  Ind.  179 99 

Lamb  v.  Tucker,  42  Iowa  118..  12 
Lamb  v.  Withrow,  31  Iowa  164  173 
Lamkins   v.    Le   Doux,    101    Me. 

581   24 


C-EC. 

Lammon   v.    Feusier,    111    U.   S. 

17    324 

Lancashire  Ins.  Co.  v.  Callahan, 

68  Minn.  277   127 

Lancaster    First    Nat.    Bank    v. 

Shreiner,  110  Pa.  St.  188 99 

Lance  v.  Pearce,  101  Ind.  595..   388 

398 
Lanckton    v.    Wolcott,    6     Met. 

(Mass.)  305  6 

Laue  V.  Duchac,  73  Wis.  655...  357 
Lane  v.  Hyder  (Mo.  App.  1912), 

147  S.  W.  514   713 

Lane  v.  Westmoreland,  79  Ala. 

372   182 

Lang  V.  Henry,  54  N.  H.  57.  .  .  .    392 

Lang  V.  Pike,  27  Ohio  St.  498 228 

Lang  V.  Seary,  72  Mo.  648 71 

Langan   v.   Hewett,   13   S.   M.   & 

M.    122    26 

Langdon  v.  Markle,  48  Mo.  357.  .  146 
Langdon  v.  Richardson,  58  Iowa 

610  388 

Langford     v.     Perrin,     5     Leigh 

(Va.)    552    3,  207 

Langley  v.  Adams,  40  Me.  125 . .  226 
Lang's  Heirs  v.  Waring,  17  Ala. 

145   26 

Lansdale  v.   Cox,   7  T.   B.  Mon. 

(Ky.)  401  194 

La  Porter  v.  Williams,   17   Cal. 

App.  428 437 

Large  v.  Steer,  121  Pa.  St.  30..  233 
La    Rose    v.    L-gansport    Nat. 

Bank,  102  Ind.  332 87,     88 

Larson  v.  Hanson,  21  N.  D.  411.  .   238 

Larson  v.  Kelly,  64  Minn.  51 334 

Lathrop  v.  Atwood,  21  Conn.  117  182 
Laurium,  Village  of  v.  Mills,  129 

Mich.  536   305 

Laverty  v.  Burr,  1  Wend.  (N.  Y.) 

529   26 

Law   V.   East   India  Co.,   4   Ves. 

824 99 

Lawrence   v.   Beecher,    116    Ind. 

312    124 


Table  of  Cases. 


511 


Sec. 
Lawrence  v.  Commonwealth,  25 

Ky.  Law  Rep.   455    423,  433 

Lawrence  v.  McCalmont,  2  How. 

(U.  S.)    426    356 

Lawson  v.  Townes,  2  Ala.  375  •  355 
Lawyers'  Surety  Co.  v.  Reinach, 

25  rise.  R.   (N.  Y.)    150 438 

Lawyers'  Surety  Co.  v.  Reinach, 

23  Misc.  R.   (N.  Y.)  242   438 

Lazelle  v.  Empire  State  Surety 

Co.,  58  Wash.  589   144a 

Lazelle  v.  Miller,  40  Oreg.  549  ••  113 
Leak  v.  Covington,  99  N.  C.  559  211 
Leno,  In  re,  60  Misc.  R.  (N.  Y.) 

520   434 

Learn  v.  Upstill,  52  Neb.  271-  ■  .  381 
Leary  v.  Murray,  178  Fed.  209 . .   189 

Lee  V.  Bolles,  20  Mich.  46 1 

Lee  V.  Burgmann,  37  Neb.  232  •  •  171 
Lee  V.  Charmley,  20  N.  D.   570..    323 

326 
Lee  V.  Dick,  10  Pet.  (U.  S.)   482, 

495   66,  355,  356 

Lee  V.  Hasting,  13  Neb.  508 66 

Lee  V.  Jones,  17  C.  B.,  N.  S.  482  140 
Lee  V.  Manley,  154  N.  C.  244 .. .  139 
Lee  V.  Newman,  55  Miss.  365  ■  •  ■   395 

Lee  V.  Stowe,  57  Tex.  444 372 

Lee  V.  Unkefer,  85  S.  C.  199 396 

Lee  V.  Wisner,  38  Mich.  82 41,     42 

Lee  V.   Yandell,   69   Tex.   34 92 

Leeds    v.    Dunn,    10    N.    Y.    469, 

475   103,  356,  363 

Leeper  v.  Paschal,  70  Mo.  App. 

37    210 

Leggett  V.  Humphrey,   21   How. 

(U.  S.)    66   74 

Leggett  V.  McClelland,  39  Ohio 

St.  624    151 

Lehigh  Coal,  etc.,  Co.  v.  Blake- 
lee,  7   Pa.   Dist.   32    371 

Leighton  v.  Brown,  98  Mass.  515  319 
Leindecker  v.  Aetna  Indemnity 

Co.,  52  Wash.  609   112e 

Leitch  V.  Taylor,  7  Barn.  &  Cr. 

491    75,  311 


Leith  V.  Bush,  61  Pa.  St.  395 

Leithauser    v.    Baumerster,     47 

Minn.    151    

Leland      v.      Felton,      1      Allen 

(Mass.)  531  

Lemmon  v.  Box,  20  Tex.  329 

Lemmon  v.  Strong,  59  Conn.  448 
Lemmon  v.  Whitner,  75  Ind.  318 
Lemp  V.  Armegol,  86  Tex.  690-  • 


Sec. 
53 

20 

252 
381 
357 
115 

348 
355 
Lennig  v.  Harrisonburg  Land  & 

T.  Co.,  107  Va.  458 11 

Lennox    v.    Murphy,    171    Mass. 

370    341,  342,  350,  362 

Lenox  v.  Prout,  3  Wheat.  (U.  S.) 

520 95 

Lent  V.  Padelford,  10  Mass.  230  353 
Lenusse  v.  Barker,  3  Wheat.  (U. 

S.)    101    87 

Leonard  v.   Gibson,   6   111.   App. 

503   228 

Leonard  v.  Vredenburg,  8  Johns. 

(N.  Y.)  29  35,  39,  347 

Leonard  v.  Wilder,  36  Me.  265..  347 
Leonhard  v.  Bank,  50  Neb.  38.  .  359 
Lerch  v.   Gallup,   67   Cal.   595..   374 

396 
Lesher  v.  United  States  Fidelity 

&  Guaranty  Co.,  239  111.  502.-  443 
Letcher  v.  Yantes,  3  Dana  160. .  145 
Levi   V.   Mendell,   1   Duv.    (Ky.) 

78    349 

Levick  v.  Norton,  51  Conn.  461.  •  321 
Levy  V.  McDonald,  45  Tex.  220  325 
Levy  V.  Webster   (Me.  1910),  76 

Atl.   936    349 

Lewenthal,   In   re,   10    Daly    (N. 

Y.)  14   281 

Lewin  v.   Barry,  15   Colo.   App. 

461    26 

Lewis  v.  Brehme,  33  Md.  112.  .  .  394 
Lewis  V    Commissioners,  70  Ga. 

486    51 

Lewis  V.  Dwight,  10  Conn.  95-67,  318 

Lewis  V.  Harvey,  18  Mo.  746 347 

Lewis  V.   Leathey,   14  Mo.  App. 

564 232 


512 


Table  of  Cases. 


Sec. 

Lewis  V.  Lewis,  92  111.  237 162 

Lewis    Adm'r    v.    United    States 

Fidelity  &  Guaranty  Co.,   144 

Ky.   425    194c 

Lewiston  v.  Gagne,  89  Me.  395-  .  51 
Lexington,  etc.,  R.  R.  Co.  v.  El- 
well,  8  Allen  (Mass.)  371  ■•■•  283 
284,  297 
Lichenthaler    v.    Thompson,    13 

Serg.  &  R.  157  152 

Liddell  v.  Wiswell,  59  Vt.  365.-    196 

197,  212 
Lidderdale      v.      Robinson,      12 

Wheat.    (U.   S.)    594    201 

Lidderdale      v.      Robinson,      2 

Brock.  159    166,  177 

Liedenback    v.    Denklespeil,    11 

Lea  (Tenn.)   297    272 

Life   Association    v.    Lemke,    40 

Kan.  661    282 

Life  Ins.  Co.  v.  Ecclesine,  6  Abb. 

Pr.,  N.  S.   (N.  Y.)   23    404 

Lime  County  v.  Farris,   52  Mo. 

75    129 

Lime  Rock  Bank  v.  Mallett,  34 

Me.  547  171 

Linam  v.  Jones,  134  Ala.  370-.   374 

377 
Linch  V.  Littlefield,  16  111.  App. 

612    75 

Lincoln  v.  Hinzey,  51  111.  437..  347 
Lincoln   Trust  Co.   v.   Wolff,   91 

Mo.   App.    133    259,  265 

Lindley  v.  State,  115  Ind.  502..  244 
Lininger,  etc.,  Co.  v.  Wheat,  49 

Neb.    567    348 

Linton      v.      Chestnutt-Gibbons 

Grocer  Co.    (Okla.    1911),    118 

Pac.  385   42,  167,  144a 

Lionberger  v.  Kieger,  88  Mo.  160     72 

286,  299 
Liquor  Dealers'   Supply  Co.,   In 

re.,  177  Fed.  197 30 

Little  V.  Bradley   (Fla.),  31   So. 

342    339 

Little  V.  Commonwealth,  48  Pa. 

St.  337 278 


Sec. 

Little  V.  Little,  13  Pick.  426 189 

Littlefield  v.  Littlefield,  91  N.  Y. 

203    90 

Livermore  v.  Ayres   (Kan.  S.  C. 

1911),  119  Pac.  549 113b 

Liverpool  Water  Works  v.  At- 
kinson, 6  East  507 284 

Lloyd  V.  Harper,  16  Ch.  D.  290, 

314   306,  345,  346 

Lobaugh   v.   Thompson,   74   Mo. 

600  92 

Locke  V.  McVean,  33  Mich.  473     66 

67 
Lockenmeyer  v.  Pogarty,  112  111. 

572    152 

Lockwood  V.  Jones,  7  Conn.  439  411 
Loeb  V.  Barris,  50  N.  J.  L.  382-  .  358 
Loeff  V.   Taussig,   102    111.   App. 

398    363 

Loew  V.  Stockney,  68  Pa.  St.  226  54 
Logan    V.    Commonwealth,    144 

Ky.   494    434 

Logan  V.  Ogden,  101  Tenn.  392  347 
Lombard  v.  Cobb,  14  Me.  222. .  .  187 
Lombard   v.   Mayberry,   24   Neb. 

674 78 

Lompoc  Valley  Bank  v.  Steph- 
enson (Oal.),  104  Pac.  449...  341 
London   Assurance   Corporation 

V.  Bold,  6  A.  &  E.   523    83 

Long  V.  Copeland,  182  Mass.  332  264 

Long  V.  Seay,  72  Mo.  648 305 

Long  V.  Templeman,  24  La.  Ann. 

564  93 

Longbridge      v.      Bowland,      52 

Miss.    546    154,    157,  160 

Lookout  Bank  of  Morristown  v. 

Aull,   93   Tenn.   645    51 

Lookout  Mountain  R.  R.  Co.  v. 

Houston,  85  Tenn.  224 377,  393 

396 
Loomis  V.  Brown,  16  Barb.    (N. 

Y.)    325    233 

Looney  v.  Hugh,  26  N.  Y.  514-.  314 
Loop  V.  Northup,  59  Hun  (N.  Y.) 

75    243 


Table  of  Cases. 


513 


^EC. 

Loop  V.  United  States,  3  Mason 

466   117 

Loosemore  v.  Radford,  9  Mees. 

&  W.  657   182 

Lopeman    v.    Henderson,    4    Pa. 

St.  232    404 

Lord  V.  Cronin,  154  N.  Y.  172..  445 
Lord  V.  Staples,  23  N.  H.  448.  .  .  .  181 
Lord   Arlington   v.   Merricke,   3 

Saund.   403    70 

Lord  V.  Calhorn,  162  Ala.  444..  398 
Loring  v.  Alline,  9  Cush.  (Mass.) 

68    263 

Loring  v.  Bacon,  3  Cush.  (Mass.) 

465     209,  260 

Loring  v.  Morrison,  15  App.  Div. 

(N.  Y.)   498    144 

Loughlin    v.    American    Surety 

Co.,  114  Fed.  627    74 

Loughlin    v.   Ferguson,    6    Dana 

(Ky.)  Ill  220 

Louisiana,  etc.,  R.  R.  Co.  v.  Dil- 

lard,  51  La.  Ann.  1484 348 

Louisiana  Society  for  Preven- 
tion of  Cruelty  to  Children  v. 

Moody,  111  La.  199  ..423,  431,  433 
Louisville,  etc.,  R.  R.  Co.  v.  Imp. 

R.  R.  Co.,  69  Fed.  433 28 

Louisville  Trust  Co.  v.  Railroad 

Co.,  75  Fed.  433    357 

Love  V.  Brown,  38  Pa.  St.  307-.  114 
Love  V.  Cahn   (Ark.  1909),  124  S. 

W.   259    224 

Love  V.  People,  91  111.  App.  237  325 

Love  V.  Shiffelin,  7  Fla.  40 27 

Lovejoy  v.  Isbell,  70  Conn.  557, 

562    54,  441 

Lovejoy  v.  Murray,  3  Wall.   (U. 

S.)    1    219,  231 

Lovejoy  v.  Whipple,  18  Vt.  379  48 
Lovelace   v.    Lovelace,   136   Ky. 

452  126 

Lovell  V.  Adams,  5  Humph.  133  129 
Low  v.  Blodgett,  21  N.  H.  121..  163 
Lowell  V.  Edwards,  2  Bos.  &  P. 

268    198 

33 


Sec. 
Lowell      V.      Parker,      10      Met. 

(Mass.)  309  323 

Lowenstein    v.    Sorge,    75    Mo. 

App.  281   36,     41 

Lowenthal  v.  Wagner,  69  N.  J. 

L.  129   411 

Lowman  v.  Yates,  37  N.  Y.  601-  .  114 
Lowry   v.   Bank,   2    Watts   &   S. 

(Pa.)  210  372 

Lowry  v.  Polk  Co.,  51  Iowa  50. .   317 

Lowry  v.  State,  64  Ind.  421 260 

Lucas  V.  Chamberlain,  8  B.  Mon. 

276   383 

Lucas  V.  Donaldson,  117  Ind.  139  258 
Lucas  V.  Governor,  6  Ala.  826-.  321 
Lucas  V.  Owens,  113  Ind.  521..   126 

Lucas  V.  Tucker,  17  Ind.  41 245 

Lucas   V.   White   Line   Transfer 

Co.,  70  Iowa  541   28 

Ludgater  v.  Cannell,  3  Man.  & 

Gr.  174    271 

Ludloy  V.  Simond,  2  Caine's  Cas. 

29   77 

Lucking  v.  Gegg,  12  Bush.  (Ky.) 

298 185 

Lumpkins  v.  Mills,  4  Ga.  343 178 

Lusk  V.   Hopper,  3   Bush    (Ky.) 

179    157 

Lusk  V.  Throop,  189  111.  127-  ..  .  398 
Lusk  V.  Throop,  89  111.  App.  509  381 

Lyle  V.  Moore,  24  111.  95 114 

Lyman  v.  Conkey,  1  Met.    (Ky.) 

317 310 

Lyman  v.  Lincoln,  38  Neb.  794  112 
Lynch  v.  Hancock,  14  S.  C.  66. .   180 

Lynch  v.  Rotan,  39  111.  14 263 

Lynch  v.  Smyth,  25  Colo.  103.-  114 
Lyndon  v.  Miller,  36  Vt.  329 ... .  337 
Lyon  V.  Horner,  32  W.  Va.  432.  .  325 
Lyon  V.  Osgood,  58  Vt.  707.  .251,  252 

253 
Lyon  Potter  &  Co.  v.  First  Na- 
tional Bank,  85  Fed.  120 30 

Lyons  v.  State,  1  Blackf.   (Ind.) 

309    431 


S14 


Table  ov  Cases. 


M.  feEC. 

MacDonald    v.    O'Shea    (Wash. 

1910),  108  Pac.  436   175 

Macfarland  v.  Heim,  127  Mo.  327  341 
Mac  Greal  v.  Taylor,  167  U.  S. 

688   24 

Machado   v.  Fernandez,  74   Cal. 

362 194a 

Mackenzie  v.  Scott,  6  Bro.  P.  C. 

280   3:4 

Macy  V.  Childress,  2  Tenn.  Ch. 

438  S82 

Madeldon  v.  Leflore,  69  Ark.  140  59a 
Madison  v.  State,  2  A.  K.  Marsh 

131   419 

Madison,  etc.,  Plank  Road  Co.  v. 

Plank  Road  Co.,  7  Wis.  59..  .  .     28 
Madison,    City    of    v.    American 

Sanitary  Engineering  Co.,  118 

Wis.  480  112d 

Magee  v.  Leggett,  48  Miss.  139-  •   158 
Magee   v.    Manhattan    Life    Ins. 

Co.,  92  U.  S.  93   66,  285,  287 

Magill,  Exr.  v.  Brown  Bros.,  20 

Tex.  Civ.  App.  662 11 

Magruder  v.  Admire,  4  Mo.  App. 

133   196 

Maguire  v.  Pan  American  A.  Co., 

205   Mass.   64    238 

Mahaska  Co.  v.  Ingalls,  14  Iowa 

170  31S 

Maingay  v.  Lewis,  5  Ir    Rep.  C. 

L.  229,  231   21 

Mainzinger    v.    Mohr,    41    Mich. 

685   371 

Malcrone  v.   American    Lumber 

Co.,  55  Mich.  622   397 

Malhem    County    v.    Carter,    52 

Oreg.  616   413 

Malin    v.    Bull,    13    Serg.    &    R. 

(Pa).  441    194a,  201 

Malleable    Iron    Range    Co.    v. 

Pusey,  244  111.  184 354 

Mallory  v.  Gillett,  21  N.  Y.  412.  .    378 
384,  392,  397 
Mallory  v.  Lyman,  3  Pin.  (Wis.)  I 

443   348  j 

Maloney  v.  Nelson,  158  N.  Y.  351  416  I 


Sec. 
Maloney  v.  Nelson,  12  App.  Div. 

(N.  Y.)   454   416 

Maltby's   Case,    1   Dow.   P.   Cas. 

294   287 

Manary  v.  Runyon,  43  Oreg.  495  381 
Mango     V.     Edwards,    1     E.     D. 

Smith  414    217 

Manice  v.  Duncan,  12  La.  Ann. 

715   131 

Mankin  v.  Jones,  68  W  Va.  422  377 
Manley  v.  Baycnt,  2  El.  &  B.  46  170 
Manly  v.  Atchison,  9  Kan.  358 . .   314 

Maun  V.  Brown,  71  Tex.  241 113 

Mann  v.  Everets,  64  Wis.  372.  • .  244 
Mannsell  v.  Egan,  8  Ir.  Eq.  372  276 
Manny   v.   National   Surety   Co., 

103  Mo.  App.   716    448 

Manry  v.  Waxelbaum  Company, 

108  Ga.  14,  17,  18    4,  348 

Mansfield  v.  Edwards,  136  Mass. 

15  18,  no 

Manufacturers'  Bank  v.  Cole,  39 

Me.   188    66 

Manufacturers'  Bank  v.  Dicker- 
son,  41  N.  J.  L.  448 66,  72,     8a 

Manufacturers',  etc.,  Co.  v.  Odd 

Fellows'  Asso.,  48  Pa.  St.  446  282 
Many  Blanc  &  Co.  v.  Jacobson, 

149  111.  App.  240   43,  353,  36S 

Many  Blanc  &  Co.  v.  Krueger, 

153  111.  App.  327   35 

Mapes  V.  German  Bank  of  Fel- 

den,   176  Fed.   89    50 

Maples    V.    Wightman,    4    Conn. 

376   24 

Maquoketa   v.    Willey,    35    Iowa 

323   131 

Marble  v.  Harvey,  92  Tenn.  115  30 
Marcy  v.   Praeger,  34   La.   Ann. 

544   327 

Marfins  v.  Willard,  12  Wash.  528  324 
Markland  Mining  Co.  v.  Kimme, 

87  Ind.  560   51 

Marlow  v.  Lacy,  68  Tex.  154 263 

Marr  v.  Burlington,  C.  R.  &  N. 

Ry.  Co.,  121  Iowa  117 381 


Table  of  Cases. 


515 


bEC. 

Marree  v.  Ingle,  69  Ark.  126-.  101 
112a,  112b,  112c 
Marrow  v.  Morrow,  2  Tenn.  Ch. 

365   35 

Marryatt  v.  White,  2  Starkie  101  97 
Marsh  v.  Bank,  2  111.  App.  217  •  •  26 
Marsh  v.  Griffin,  42  Iowa  403  ■  .   107 

362 

Marsh  v.  Low,  55  Ind.  271  15 

Marsh   v.    People,    15    111.    284..   249 

258 
Marsh    v.    Phillips     (Tex.     Civ. 

App.  1912),  144  S.  W.  1160 111 

Marshall    v.    Hudson,    9    Yerg. 

(Tenn.)   88   134,  173 

Marshalltown  Stone  Co.  v.  Louis 

Drach  Const.  Co.,  123  Fed.  746  134 
Martin  v.  Bank,  6  Har.  &  Johns. 

(Md).  225    99 

Martin  v.  Curtis   (Mich.),  77  N. 

W.  690    385 

Martin  v.  Ellerbe,  70  Ala.  326-35,  174 
Martin  v.  Empire  State  Surety 

Co.,  53  Wash.  290 112c,  112e 

Martin  v.  Fraatz,  127  Pa.  St.  389  211 
Martin  v.  Hann,  32  App.  Div.  (N. 

Y.)   602    265 

Martin  v.  Hodge  (S.  C.  1910),  69 

S.   E.   225    224 

Martin    v.    Kilbourn,    12    Heisk. 

(Tenn.)    331    224 

Martin  v.  Moore,  2  Strange  922  217 
l^Iartin   v.    Porter,    32    App.    Div. 

(N.  Y.)    602    243 

Martin  v.  Smith,  136  N.  Y.  804  323 
Martin  v.  Tally,  72  Ala.  23-  •  -65,  243 
Martin   v.  White,   128   Mo.   App. 

117 66,  112c,  112d,  442 

Martin  v.  Wright,  6  Adol.  &  E. 

917 352 

Martindale  v.  Brock,  41  Md.  571  164 
Martin's  Estate,  131  Pa.  St.  638  343 
Marvin  v.  Stone,  2  Cow.  (N.  Y.) 

781  252 

Mason  v.  Lord,  20  Pick.  (Mass.) 

447    198,  202 

Mason  v.  Pierrson,  69  Wis.  590.  .194a 


bEC. 

Mason  v.  Pritchard,  12  East  227     67 

354 
Mason  v.  Standard  Distilling  & 

Distributing  Co.,  85  App.  Div. 

(N.  Y.)   520   361 

Massachusetts   Bonding   &    Ins. 

Co.  V.  Realty  Trust  Co.   (Ga. 

1912),  73  S.  E.  1053   112e 

Masser  v.  Strickland,  17  S.  &  R. 

(Pa.)   354   227 

Massie  v.  Mann,  17  Iowa  131 27 

Mathews  v.  Phelps,  61  Mich.  327  356 
Mathews  v.  Switzler,  46  Mo.  301  97 
Matley  v.  Harris,  1  Lea  (Tenn.) 

577    155,  157 

Matteson  v.  Moone,  25  R.  I.  129  374 

381 
Matthew  v.   Garman,   110   Mich. 

559   83 

Matthews  v.  Hall,  21  W.  Va.  510  186 
Matthews    v.    Skinker,    62    Mo. 

329   29 

Mattingly  v.  Riley,  20  Ky.  Law. 

Rep.    1621    104 

Mattingly  v.   Sutton,  19  W.  Va. 

19   162 

IMattoon    v.     Cowing,     13    Gray 

(Mass.)  387  261 

Mauran   v.   Bullus,    16    Pet.    (U. 

S.)    528   356 

Maxwell    v.    Wright    (Ind.    App. 

1902),  64  N.  E.  893   78 

May  V.  Chicago  Crayon  Co.  (Civ. 

App.  1912),  147  S.  W.  733 66 

May  V.  Hammond,  144  Mass.  151       6 

May  V.  Horn,  2  Harr.  190 70,  305 

May  V.  May,  19  Fla.  373 183 

May  V.  Vann,  15  Fla.  533 211 

May  V.  Walker,  20  Pa.  Super.  Ct. 

581    381,  391 

May  V.  Williams,  61  Miss.  125.-   382 

383,  395 
Mayberry  v.  Bainton,  2  Harr.  24  26 
Mayer  v.  Isaacs,  6  Mees.  &  W. 

605    356 

Mayes  v.  Lane,  25  Ky.  Law  Rep. 

824  112.. 


516 


Table  of  Cases. 


iSEC. 

Mayhew  v.  Boyd,  5  Md.  102 67 

Mayhew  v.  Crickett,  2  Swan.  185  170 
Maynard  v.  Morse,  36  Vt.  617  ■  ■   348 

355 
Mayor   v.    Crowell,   40    N.    J.    L. 

207    70,  305 

Mayor  v.  Horn,  2   Harr    (Del.) 

190  305 

Mayor  v.  Kelly,  98  N.  Y.  468 80 

Mayor      v.      Kennett,      12      Lea 

(Tenn.)  700 143 

Mayor  v.    Merritt,    27   La.   Ann. 

568   337 

Mayor  V.  Wright,  16  Q.  B.  63 71 

Maysville  Telephone  Co.  v.  First 

JVat.   Bank,  142  Ky.   578 .  •  174,  180 

183 
"Mazro  v.  Puller,  24  Wend.    (N. 

Y.)    374     108 

McAllister  v.  Clark,  86  111.  236-  •  237 
McAllister  v.  Irwin's  Estate,  31 

Colo.  253  194,  196 

Mc Arthur   v.    McGilvray,    1    Ga. 

App.    643 67a 

McBroom  v.  Cheboygan  Brewing 

&  Malting  Co.,  162  Mich.  323  •  •  30 
McCallum  v.  McClarren,  15  Ida. 

374   385 

McCampbell    v.   Fountain    Head 

R.  Co.,  Ill  Tenn.  55 30 

McCarty  v.  Frazer,  62  Mo.  263  •  251 
McCarty  v.  Roots,  21  How.   (U. 

S.)    437    206,  210 

McCartney  v.  Ridgway,  160  111. 

129    66,  100 

McCaughey  v.  Smith,  27  N.  Y.  39  110 
McClatchie  v.  Durham,  44  Mich. 

435    211 

McClelland  v.  Chambers,  1  Bibb. 

(Ky.)    336    428 

McClurg  V.  Fryer,  15  Pa.  St.  293  359 
McCluskey  v.  Cromwell,  11  N.  Y. 

93   66 

McCollum  V.  Boughton,  132  Mo. 

601    165,  199 

McCollum    V.    Cushing,   22    Ark. 

542   355 


Sec. 
McCollum  V.  Hickley,  9  Vt.  143  146 
McComb    V.    Kittridge,    14    Ohio 

348 46 

McCombs  V.  Allen,  82  N.  Y.  114  131 

216 
McCormick  v.  Bay  City,  23  Mich. 

457    51,     56 

McCormick  v.  Irwin,  35  Pa.  St. 

Ill   73 

McCormick     v.     Thompson,     10 

Neb.  484   334 

McCormick     Harvesting     Mach. 

Co.  V.  Reiner,  4  Kan.  App.  725  26 
McCoslin  V.  David,  22  Tex.  Civ. 

App.  53   238 

McCoy  V.   Scott,  2  Rawle   (Pa.) 

222     246 

McCreery  v.  National  Surety  Co., 

226  Pa.  St.  450   144a 

McCrory  v.  Parks,  18  Ohio  St.  1  190 

McCune  v.  Belt,  45  Mo.  174 210 

McDoal    V.    Yeomans,    8    Watts 

(Pa.)  361  357 

McDonald  Exp.,  2  Whart.   (Pa.) 

440    420 

McDonald  v.  Atkins,  13  Neb.  568  329 

332 
McDonald  v.  General  Construc- 
tion Co.,  152  Iowa  273 392 

McDonald  v.  Felt,  49  Cal.  354..   219 

231 
McDonald  v.  Harris,  75  111.  App. 

Ill    66,     67 

McDonald  v.  Loersen  (Mo.  App. 

1910),  130  S.  W.  52    74 

McDonald   v.    Magruder,    3    Pet. 

(U.  S.)  470.  .  .  .10,  16,  194,  206,  210 
McDonald  v.   O'Shea,   55   Wash. 

169   172 

McDonald    v.    Tootle,    Weahley 

Millinery  Co.,  64  Neb.  577...  341 
McDonald  v.  Wood,  118  Ala.  589  384 
McDonald,    Ex    parte,    2    Wheat 

(U.   S.)   440   418 

McDonald     Sticker     &     Co.     t. 

Sharp,  157  111.  App.  165 386 


Table  of  Cases. 


»17 


feEC. 

McDonough  v.  Nowlin  (Cal.  App. 

1911),   118   Pac.   463 178,  180 

McDougald  v.  Development  Co., 

117  Cal.  87 341 

McDowell     V.     Bank,     1     Harr. 

(Del.)   369    99 

McFadden  v.  Fritz,  110  Ind.  1--  238 
McFarland  v.  Wilber,  35  Vt.  342  411 
McFarlane      v.      Milwaukee,      51 

Wis.  691   360 

McFarlane    v.    Howell,    91    Tex. 

218   226 

McFarlane     v.     Wadhams,     176 

Fed.    82    361 

McFarlane  v.  Williams,  177  Fed. 

82   370 

McGaughey  v.   Jacoby,   54  Ohio 

St.   487    251 

McGlothlin     v.     Wyatt,     1     Lea 

(Tenn.)  717 260 

McGraw  v.  Governor,  19  Ala.  89  325 
McGooney  v.  State,  20  Ohio  St. 

93   66 

McGuire  v.  Williams,  123  N.  C. 

349    337 

McGurk  V.  Huggett,  50  Mich.  187  206 
McHardy  v.  Wadsworth,  8  Mich. 

350 144 

Mcllhenney    v.    Blum,    68    Tex. 

197   147 

Mclntire  v.   Cottrell,   185  Mass. 

178    253,  258 

Mclntire    v.    Schiffer,    31    Colo. 

246    379,  381 

Mcintosh-Huntington       Co.       v. 

Reed,  89  Fed.  464  2,       4 

McKay  v.  Ward,  57  Utah  1024.  .  11 
McKee  v.  Needles,  123  Iowa  195, 

98  N.  W.  618   348 

McKelvy  v.  Berry,  21  Pa.  Super. 

Ct.  276    144a 

McKenna  v.  George,  2  Rich  Eq. 

15  197 

McKenzie  v.  Ward,  58  N.  H.  541  290 
McKichen  v.  Webb,  6  How.  292  66 
McKim  V.  Haley,  173  Mass.  112     65 

243 


Sec. 
McKim  V.  Morse,  130  Mass.  439  261 
McKinney  v.  Armstrong,  97  111. 

App.    208    374 

McKinnon     v.     Boardman,     170 

Fed.    920    366 

McKissack    v.    McClendon,    133 

Ala.  558 54 

McKnight    v.    Bradley,    10   Rich 

Eq.  (S.  C.)  557   189 

McKnight  v.  Strong,  25  Ark.  212  217 
McLaren  v.  McMartin,  36  N.  Y. 

88   90 

McLaren  v.   Watson,   26   Wend. 

(N.   Y.)    425    339,  357 

McLaughlin     v.     McGovern,     34 

Barb.  (N.  Y.)  208 366 

McLean  v.  McLean,  88  N.  C.  794  253 
McLean     v.      State,      8     Heisk. 

(Tenn.)   22   61,  337 

McLin     v.     Harvey     (Ga.     App. 

1910),  69  S.  E.  123 194,  194a 

McLondon    v.    Mortg.    Co.,    119 

Ala.  518 334 

McMillan  v.  Parkell,  64  Mo.  286  58 
JMcMillen  v.  Mason,  71  Wis.  405  193 
McMucken    v.    Safford,    197    III. 

540 .341 

McMullen  v.  Rafferty,  89  N.  Y. 

456.   ...    • 90 

McMullen  v.  United  States,  167 

Fed.  460.  .  .  .66,  100,  101,  112b,  113 
McMullen  v.   Winfield  Building 

&  Loan  Assn.,  64  Kan.  298 69 

70,  74,  75,  282,  291 
McNaught  v.  McClaughry,  42  N. 

Y.  22 39,  41,  342 

McNee  v.  Sewell,  14  Neb.  532 ..  .  325 
McNairy  v.   Eastland,   10   Yerg. 

310 163 

McNeilly    v.    Driscoll,    208    Mass. 

293       217 

McNeilly  v.  Patchin,  23  Mo.  40.  .   165 

210 
McNutt  v.  Livingston,  7  Sm.  & 

M.    (Miss.)    64.   .    333 

McPharlin   v.  Fidelity  and   De- 


518 


Table  of  Cases. 


Sec. 

posit  Co.  of  Maryland   (Mich. 

1910),   127   N.   W.   307 95 

McPhillips  V.  McGrath,  117  Ala. 

549 302,  303,  308 

McQuewans  v.  Hamlin,  5  Pa.  St. 

517 26 

JMcTaggart  v.  Watson,   3   CI.   & 

F.  536.  .  . 291 

McVey  v.  Peddle,  69  Neb.  525  •  ■  225 
McWilliams  v.  Mason,  31  N.  Y. 

294.  ...    100,  287 

Meade    v.    McDowell,    5    Bing. 

(Pa.)   195 371 

Means    v.    Worthington      (Tex. 

Civ.  App.  1912),  147  S.  W.  345  153 
■Mechanics  &  Traders'  Nat.  Bank 

V.  Winant,  123   N.  Y.  265 112 

Mecomey  v.  Stanley,  8  Cush.  85.  44 
Midlin     v.    Commonwealth,     11 

Bush  (Ky.)   605. 424 

Meeker  v.  Waldron,  62  Neb.  689  151 
Meldrum  v.   Kenefick,   15   S.   D. 

370.  ...    381,  391 

Melendy  v.  Capen,  120  Mass.  222  354 
Melone  v.  Keener,  44  Pa.  St.  107  390 
Melville  v.  Dodge,  6  M.  G.  &  S. 

450.   .   .   . 285 

Menard  v.  Scudder,  7  La.  Ann. 

385.   .   .   .    ...*.... 346 

Mercantile  Trust  Co.  v.  Hensey, 

205  U.   S.  298    112f 

Merchants     &     Manufacturer's 

Nat.  Bank  v.   Cummings,   149 

N.  Y.  36 182 

Merchants'  Ins.  Co.  v.  Huler,  68 

Me.  420.  .  . 97 

Merchants'    National    Bank    v. 

Cole,  83  Ohio  50,  93  N.  E.  465  340 

354 
Merchants'   Nat.   Bank   v.   Eyre, 

107  Iowa  13    10 

Merchants    Nat.    Bank    v.    Hall, 

83  N.  Y.  338.  .  .   66 

Merchants'  Nat.   Bank  v.  Ryan, 

67   Ohio    St.   448 35 


Sbc. 
Merchants'     National    Bank    t. 

Worcester.  75  N.  H.  495.  . 113a 

Marcy  v.  Praeger,  34  La.  Ann. 

54.  .  .    74 

Merriam   v.    McManus,    102    Pa. 

St.   102.   .  .    396 

Merrill  v.  Harris,  26  N.  H.  142..  252 
Merriman  v.  Baker,  121  Ind.  74  122 
Merriman  v.  McManus,  102  Pa 

St.  102 377,  391,  393 

Merritt   v.    Haas    (Minn.    1911), 

129  N.  W.  379.  .    3a 

Mersman  v.  Werges,   112  U.   S. 

139 104,  110 

Merwin  v.  Austin,  58  Conn.  22.  144 
Meyer  v.  Barth,  97  Wis.  352.  .65,  243 
Meyer  v.  Haitman,  72  111.  442..  397 
Meyer  v.  Parsons,  129  Cal.  653-  •  387 
Meyers  v.  Campbell,  59  N.  J.  L. 

378.  .  . 151 

Meyers  v.  Miller,  4  W.  Va.  395 . .  152 
Meyers  v.    Wood,   26   Tex.    Civ. 

App.    591.    . 112c,  112e 

Meyers  v.  Yaple,  65  Mich.  403  154 
Michael    v.    Allbright,    126    Ind. 

172 196 

Michell  V.  Roberts,  17  Fed.  776.  13i 
Mich.    State    Ins.    Co.    v.    Soule, 

51  Mich.  312.  .  . 147 

Middleboro  Nat.  Bank  v.  Rich- 
ards, 55  Neb.  682.   . 51 

-Middlesex  Manuf.  Co.  v.  Law- 
rence, 1  Allen  (Mass.)   339...   282 

Middle  States,  Etc.  Co.  v. 
Engle,  45  W.  Va.  588 359,  364 

Middleton     v.     Hensley     (Ky.), 

52  S.  W.  974.  . 260 

Mieswindle  v.  Jung,  30  Wis.  361  115 
Mighton    v.    Scott,    38    Ohio    St. 

650.   .   .   .    256 

Milan    Bank    v.    Richmond,    235 

Mo.   532.   .   .    . 77,  126 

Miles  V.  Davis,  36  Tex.  690 238 

Miles  V.  Linnell,  97  Mass.  298-.  371 
Miller    v.    Baker,    25    Ky.    Law. 

Rep.  1858 222 


Table  of  Cases. 


519 


Sec 
Miller  v.  Berkey,  27  Pa.  St.  317  4 
Miller  v.  Ferris,  10  Upper  Can. 

423 54 

Miller  v.  Finley,  26  Mich.  249..  110 
Miller    v.    Friedheim,    82    Ark. 

592 ..66,  112 

Miller  v.  Gaston,  2  Hill  192 357 

Miller  v.  Gillespie,  59  Me.  220..  212 
Miller   v.    Gilliland,    19    Pa.    St. 

119 105 

Miller     v.     Lewiston     National 

Bank    (Idaho   1910),    108   Pac. 

901 ..339,  353 

Miller    v.    Montgomery,    31    111. 

350 98 

Miller  v.  Pitts,  152  N.  C.  629...  171 
Miller  v.  Spain,  41  Ohio  St.  376  113 

Miller  v.  State,  158  Ala.  73 421 

Miller  v.  Stem,  12  Pa.  St.  383..    129 

Miller  v.  Stem,  2  Pa.  St.  286 119 

Miller  v.  Stevens,  9  Wheat.   (U. 

S.)   680 80 

Miller  v.  Stewart,  9  Wheat.   (U. 

S.)  681.  .  .  66,  68,  72,  102,  286,  312 
Miller  V.  Stout,  5  Del.  Ch.  262. .     35 

174 
Milligen  v.  Gallen,  64  Neb.  561 . .  325 
Milligan    v.    Holbrook,    168    111. 

343.    .    .    347 

Milliken    v.    Callahan,    69    Tex. 

205 129 

Milliken  v.  Pratt,  125  Mass.  374  93 
Millikin     v.     State,     7     Blackf. 

(Ind.)  77.  .  .   70 

Mills  V.  Brown,  11  Iowa  314.382,  384 
Mills  V.  Fowkes,  5  Bing.  N.  C. 

455   98 

Mills  V.  Hyde,  19  Vt.  59 196 

Milner  v.  Green,  2  Johns.  Cas. 

(N.  Y.)    283. 411 

Milwaukee  v.  United  States  Fi- 
delity   &    Guaranty    Co.,    144 

Wis.  603    309,  339 

Milwaukee    Co.    v.    Ehlers,    45 

Wis.  281.  .  . 310 


Sec. 

Milwaukee  Co.  v.  Pabst,  70  Wis. 

352 310 

Mineau     v.     Imperial     Dredge    & 

Exploration  Co.,  19  Ida.  458..   387 

Miniek  v.  Huff,  41  Neb.  516 382 

Minkle  v.   State  ex  rel.   Smith- 

ers,    14    Nev.    181 163 

Minor   v.   Bank,   1   Pet.    (U.   S.) 

46 285 

Mintern  v.  United  States,  106  U. 

S.    437 314 

Mississippi    Co.    v.    Jackson,    51 

Mo.  23.  .  . 61 

Mitchell   V.    Commonwealth,    12 

Bush    (Ky.)    247 422 

Mitchell   V.   Hydraulic   Building 

Stone     Co.     (Tex.     Civ.     App. 

1910),  129  S.  W.  148   54 

Mitchell  V.  Railton,  45  Mo.  App. 

27.  . 340 

Mitchell  V.  Rice,  132  Ala.  120,  31 

So.  498.  .   .    317 

Mix  V.  People,  26  111.  32 426 

Mix  V.  Singleton,  86  111.  194. .. .   235 

Mix  V.  Vail,  86  111.  40 233,  235 

Moakley  v.  Riggs,  19  John.   (N. 

Y.)    69..   . 359 

Mobile  &  O.  R.  Co.  v.  Nicholas, 

98  Ala.  92.  .  .  2 

Mobile,  Etc.  R.  R.  Co.  v.  Brewer, 

76  Ala.  135.  . 282 

Mockett   v.   Boston   Iron   Co.,  2 

Nebr.    (Unoff.)    500    117 

Moffett  V.  Koch,  106  La.  371 34 

Moffitt  v.  Roche,  77  Ind.  48 165 

Movies  V.  Bird,  11  Mass.  436...  42 
Moloney   v.    Nelson,    158    N.    Y. 

351 416 

Monarch     Co.    v.    Farmers'    & 

Drovers'  Bank,  105  Ky.  430...  30 
Monroe  v.  Gifford,  35  Iowa  646.  233 
Monson   v.    Drakeley,   40   Conn. 

552.   .    .    168,  194 

Monson  v.  Meyer,  195  111.  142..  224 
Montague  v.  Fidcombe,  2  Vern. 

518 292 


520 


Table  of  Cases. 


Sec 
Montefiore  v.  Lloyd,  15  C.  B.  N. 

S.  203 83 

Monteith   v.   Commonwealth,   15 

Gratt.    (Va.)    172,  185. 63 

Montgomery  v.  Kellog,  43  Miss. 

486 352 

Montgomery   v.   Page,  29   Oreg. 

320.   . 210 

Montgomery  Co.  Bank  v.  Bank, 

7   N.  Y.   459.  . 336 

Montgomery  County  v.  Coch- 
ran, 121  Fed.  17.    317 

Montgomery  Railroad  v.  Hurst, 

9  Ala.  513.  . 110 

Monticello  v.  Lowell,  70  Me.  437  316 
Montpelier  v.  Clarke,  67  Vt.  479  337 
Montstephen  v.  Lakeman,  L.  R. 

5  N.  S.  613  392 

Moodick    V.    Penman,   3    Desaus 

(S.  C.)    .   .    253 

Moody  V.  Findley,  43  Ala.  167.  3 
Moody  V.  Haworth,  24  Ind.  App. 

634 2 

Mooney  v.  People,  81  111.  134...  423 
Mooney  v.  State,  13  Mo.  7.  .  .  •  •  .  313 
Moore  v.  Allegheny  City,  18  Pa. 

St.  55 337 

Moore    v.    Bowmaker,    3    Price 

214.  .  .  . 241 

Moore    v.    Bruner,    31    111.    App. 

400.    .    . 196,  200 

Moore  v.  Campbell.  36  Vt.  361..  163 
Moore  v.  Cross,  19  N.  Y.  27....   307 

Moore  V.  Gray,  26  Ohio  525 128 

Moore  v.  Lindsay  (Tex.  Civ. 

App.),  71   S.  W.  298. 325 

Moore  v.  McKenney,  83  Me.  80-  ■  43 
Moore  v.  Redding,  69  Miss.  841.     46 

47 
Moore  v.  Stanwood,  98  111.  605.  133 
Moore  v.  Topliff,   107  111.  241..     20 

157,  193 
Moore     v.     Title     Guaranty     & 

Trust,  151  Mo.  App.  256.- -66,  67 
Moore  v.  Wallis,  18  Ala.  458...     85 

306,  345 


Moore  &  Co.  v.  Rooks,  71  Ark. 

562 306 

Moorehead    v.    State,     38     Kan. 

489 431 

Moore  Lumber  Co.  v.  William- 
son, 110  Va.  775   341 

Moorman   v.    Hudson,    125    Ind. 

504 .    208 

Moran  v.  Prather,  23  Wall.   (U. 

S.)   492.  ...    26 

Moretz  v.  Ray,  75  N.  C.  170 320 

Morgan  v.  Blackiston,  5  Har.  & 

J.  (Md.)    61.  . 232 

Morgan  v.  Long,  29  Iowa  434..   329 

332 

Morgan  v.  People,  87  111.  76 242 

Morgan  v.  Smith,  70  N.  Y.  537.  •  111 
116,  198,  202 
Morgan  v.   Thompson,   60   Iowa 

280 113,  119,  171 

Morgan  v.  West,  43  Ga.  275.242,  258 
Morgan  &  Bros.  v.  Missouri  K. 

&  T.  Ry.  Co.    (Tex.  Civ.  App. 

1908),  110   S.  W.  978 30 

Morienthal    v.    Mosler,    16    Ohio 

St.  566 90 

Moris  V.  Bird,  11  Mass.  436 39 

Morley    v.    Brothly,     10     J.     B. 

Moore  395.  .  . 40 

Morley  v.  Metamora,  78  111.  394.       9 

289,  301 
Morrill  v.  Baggott,  157  111.  240  362 
Morrill    v.    Lamson,    139    Mass. 

115.   .   .   .    27 

Morris   v.    Cleasby,    4    Maule    & 

Sel.   566 394 

Morris  v.  Cooper,  35  Kan.   156.   244 

261 
Morris     v.     Morris,     9     Heisk. 

(Tenn.)  814 247,  250 

Morris    &    Co.    v.    Lucker,    158 

Mich.  518.  .   .   .    356 

Morris  Canal  v.  Van  Vorst,  21 

N.  J.  L.  100 72 

286,  291,  293,  295 
Morrissey  v.  Kinsey,  16  Neb.  17  391 


Table  of  Cases, 


521 


Sec. 
Morrison  v.  Berkey,  7   Serg.  & 

R.  238  .  .  .   180,  195 

Morrison    v.    Citizens'    National 

Bank,  65  N.  H.  253  ...  .97,  123,  131 
Morrison    v.     Poyntz,     7     Dana 

(Ky.)    307 196,    197,  202 

Morrison  v.  Schlesinger,  10  Ind. 

App.  665 365 

Morrow     v.     Penton,     8     Leigh. 

(Va.)   54.  .  .  .   254 

Morrow  v.  State,  6  Kan.  222 437 

Morrow  v.  Wood,  56  Ala.  3 310 

Morse   v.   Blanchard,   117   Mich. 

37 46 

Morse  v.  Williams,  22  Me.  17- . .  168 
Mortenson  v.  Bergthold,  64  Neb. 

208.   .   .   .    253 

Mortland  v.  Hines,  8  Pa.  St.  268.  147 
Moses    V.    Murgatroyd,   1    John. 

Ch.   (N.  Y.)   119 151 

Moses  V.  United  States,  166  U.  S. 

571.    .   .    .    65,  292 

Mosher    v.    Murphy,    121    Mass. 

276 213 

Moshier  v.  Kitchell,  87  111.  18..    388 

Moss  V.  Craft,  10  Mo.  720 131 

Moss  V.  Pittinger,  3  Minn.  217.  •     64 

131 
Moss    V.    Riddle,    5    Cranch    (U. 

S.)   351.  ...    49 

Mott  V.  Hazen,  27  Vt.  208 411 

Mott  Iron  Works  v.  Clark  (S.  C. 

1910),  69  S.  E.  227 339,  348 

Moulding    v.    Wilhartz,    169    111. 

422 65 

Moulding   v.    Wilhartz,    67     111. 

App.  659.  .  .    277 

Moulton    V.    Cornish,     33     App. 

Div.  C.  228 66,     67 

Mount     V.     Commonwealth,     2 

Bibb.   (Ky.)  95   420 

Mount  Pleasant  Bank  v.  Pol- 
lock, 1  Ohio  35 412 

Mowbray  v.  State,  88  Ind.  327-  .  85 
Mowing,    etc..    Machine    Co.    v. 

Land,  98  Ky.  576.  .  366 


;tpj  "  '  tsEc. 

Mowry  v.  Adams,  14  Mass.  337.  178 
Moyses    V.    Schendorf,    238    111. 

232 114 

Moyses  v.  Schendorf,  142  111. 

App.  293  114 

Mozingo  V.  Ross,  150  Ind.  688.90,  91 
Mt.  Sterling  Imp.  Co.  v.  Cock- 

rell,  24  Ky.  Law  Rep.  115...  128 
131,  132 
Mueller  v.  Barge,  54  Minn.  314.  208 
Mueller   v.    Dobschuetz,    89    111. 

176 116 

Mulcrone  v.   American   Lumber 

Co.,  55  Mich.  622 385. 

Mulert  V.  Real  Estate  &  Trust 

Co.   of  Pittsburg,   226   Pa.   St. 

602 Ill 

Mullen  V.  Morris,  43  Neb.  596.  52 
Mullendore    v.    Weitz,    75    Ind. 

431 120 

Mullikin     v.    State,     7     Blackf. 

(Ind.)    77.   .   .   .    285 

Mumford  v.  Railroad  Co.,  2  Lea 

(Tenn.)   393   .66,     72 

Municipal   Court   v.   Whaley   25 

R.   I.   289    249 

Munoz    V.    Brassel     (Tex.    Civ. 

App.  1908),  108  S.  W.  417.  ..  .  30 
Munroe    v.    Towers,    2    Cranch 

C.  C.  187.  .  .   408 

Murphy  v.  Dorsey,  23  Ohio  Cir. 

Ct.  R.  157.   .  .    242 

Murphy    v.    Ottman,    127    App. 

Div.  (N.  Y.)  563 Ill 

Murray  v.  Wood,  144  Mass.  195.  264 
Museum  of  Fine  Arts  v.  Ameri- 
can Bonding  Co.  (Mass.  1912), 

97  N.  E.  633 100,  112e 

Music  v.  Music,  7  Mo.  495 392 

Mussey     v.     Raynor,     22     Pick. 

(Mass.)   228.  ... 356 

Mutual  Loan  &  Banking  Co.  v. 

Hope,  112  Ga.  729 ..362 

Muzzy  v.  Shattuck,  1  Denio  233  316 

Myers  v.  Bank,  78  111.  257 115 

Myers  v.  Farmer,  52  Iowa  20 . . .     70 


S2a 


Table  of  Case*. 


Sec 
Myers  v.  Kiowa  Co.,  GO  Kan.  189  317 

Myers  v.  Edge,  7  T.  R.  254 84 

Myers  v.  Miller,  45  W.  Va.  595- .   338 
Myers  v.   United  States,   1   Mc- 
Lean 493 303 

Myers  v.  Welles,  5  Hill   (N.  Y.) 

463.   .   .   .    122 

Mystic  Works  of  the  World  v. 
United  States  Fidelity  & 
Guaranty  Co.,  152  111.  App.  223     66 

N. 

-Nading   v.    McGregor,    121    Ind. 

465.   .   .   .    348 

Nagill  V.  Brown  Bros.,  20  Tex. 

Civ.  App.  662.  ...   2 

Narre  v.  Chittenden,  56  Ind.  462  210 
Nanz  V.  Oakley,  120  N.  Y.  84..  23 
Nash  V.  Fugate,  32  Gratt   (Va.) 

595.   ...    51 

Nash  V.  Sawyer,  114  Iowa  742..  257 
Nathan  v.  Sloan,  34  Ark.  524...  347 
National    Bank    v.    Cotton,    53 

Wis.  317.   .   .  .    371 

National  Bank  v.  Grand  Lodge, 

98   U.  S.   123,   124 12 

National  Bank  v.  Phelps,  92  N. 

Y.  44.  .  .  . 72 

National  Bank  of  Commerce  v. 

Gaar,  23  Ohio  Cir.  Ct.  R.  447.  356 
National  Bank  of  Commerce  v. 

Rockfeller,  174  Fed.  22... 339,  356 
National  Bank  of  Commerce  v. 

Schirm,  3  Cal.  App.  696 2 

National  Bank  of  Ft.  Wayne  v. 

Stockyards    Bank,    138    App. 

Div.    (N.  Y.)    918.    354 

National    Bank    of    Newport    v 

Snyder     Mfg.     Co.,    117    App. 

Div.   (N.  Y.)   370. 28 

National  Bank  of  Rolla  v.  First 

National     Bank      (Mo.     App. 

1910),  125  S.  W    513 366 

National      Bank     of      Western 

Pennsylvania     v.    Lake     Erie 


Sb«. 
Asphalt  Co.  (Pa.  1912),  82  Atl. 

773 se 

National   Eagle   Bank   v.   Hunt, 

16  R.  I.  148. 344,  346,  361 

National  Fire  Ins.  Co.  v.  Rowe, 

20  Ky.  Law  Rep.  1473 401 

National   Home   Building   Asso. 

v.   Home   Sav.   Bank,   181   111. 

35.  .  .  .   3« 

National  Machine  Bank  v.  Peck, 

127  Mass.  298 9* 

National  Park  Bank  v.  Koehler, 

204  N.  Y.  174.  .  .    66,  US 

National  Park  Bank  v.  Koehler, 

137  App.  Div.  (N.  Y.)  785....  11« 
National  Park  Bank  v.  Koehler, 

65   Misc.   R.    (N.   Y.)    390 llC 

National  Rubber  Co.  v.  Sims,  44 

Neb.  148.  .   .  . 394 

National  Surety  Co.  v.  Di  Mar- 

sico,  55  Misc.  R.  302.  ...7,  194,  201 
National    Surety    Co.    v.    Long, 

125  Fed.  887.  .  .   144a 

National  Surety  Co.  v.  Schneid- 

ermann    (Ind.   App.   1911),   96 

N.  E.  955 12S 

National    Surety   Co.    v.   United 

States,  123  Fed.  294 S 

Neagle   v.    Sprague,    63    111.    App. 

25.   .   .   . 355 

Neel  V.  Harding,  2  Mete.  247...  171 
Neff  V.  Homer,  63  Pa.  St.  327-.     55 

107 
Neff's    Appeal,    9    Watts    &    S. 

(Pa.)    36    130,  137 

Nehr  v.   German   Congregation, 

47  Md.  177.  .  . 104 

Neil  V.  Morgan,  28  111.  524. 53 

Nelson  v.  Boynton,  3  Met.  396.   391 

392 
Nelson  v.  City  of  Albert  Lea,  87 

Minn.  285.  .  .  .    235a 

Nelson  v.  Flagg,  18  Wash.  39 . .  47 
Nelson  v.  Woodbury,  1  Me.  251.  253 
Nettleton   v.   Billings,   17   N.   H. 

453.   .   .   .    408.  412 


Table  of  Cases. 


523 


Sec. 
Nevitt  V.  Woodburn,  160  111.  203     63 

65,  243 
Newark,  City  of  v.  New  Jersey 

Asphalt  Co.,  68  N.  J.  L.  458.     94 

112c 
Newbern  Bank  v.  Jones,  2  Dev. 

Eq.    (N.  C.)   284 333 

Newburgh  Bank  v.  Smith,  66  N. 

Y.  271 99 

Newbury  v.  Davis,  209  Mass.  126  301 
Newcomb  v.  Kloeblen,  77  N.  J. 

L.   791 353,  354,  356 

Newcomer  v.  State,  77  Tex.  286.  69 
New  Haven  v.  Cludsey,  68  Conn. 

397.   .   .   .    321 

New    Haven    Bank    v.    Miles,    5 

Conn.  587   405,  407 

New  Haven,  City  of  v.  Eastern 

Pav.  Brick  Co.,  78  Conn.  689  67 
73,  74,  144a,  442 
New  Haven  Co.  v.  Mitchell,   15 

Conn.   206.   .   .    348 

New  Home  Sewing  Mach.  Co.  v. 

Seago,  128  N.  C.  158 74 

New  Home  Sewing  Mach.  Co.  v. 

Simon,  104  Wis.  120,  80  N.  W. 

71   365 

Newlan    v.    Harrington,    24    111. 

206 103,  109 

Newman  v.  Coza,  2  La.  Ann.  642  176 
Newmarket  Sav.  Bank  v.  Han- 
son, 67  N.  H.  501,  509. 14 

New  Orleans  v.  Gauthreaux,  39 

La.  Ann.  109.  .  . . ,  308 

New  Orleans  Canal  Banking  Co. 

V.  Hogan,  1  La.  Ann.  62 .     68 

New  Times  Pub.  Co.  v.  Doolittle 

(Colo.  1911),  118  Pac.  974.  .2,  144a 
Newton  v.  Field,  16  Ark.  216...  163 
Newton  v.  Newton,  53  N.  H.  537.  23 
Newton  Wagon  Co.  v.  Deers,  10 

Neb.  284.  .  .   349 

New    York    Bank    Note    Co.    v. 

Kerr,  77  111.  App.  53...... 95,  193 

New  York  Car  Wheel  Works,  In 

re  (U.  S.  C.  C).  141  Fed.  430         30 


Sec. 
New  York,  City  of  v.  Clark,  84 

App.  Div.  (N.  Y.)   383 Ill 

-ew  York,  City  of  v.  Seely  Tay- 
lor Co.,  149  App.  Div.  (N.  Y.) 

98.  .  .  . 93a 

New  York  Firemen's  Ins  Co.  v. 

Bennett,  5  Conn.  574. 26 

Xew      York      State      Bank      v. 

Fletcher,  5  Wend.  (N.  Y.)  85.  165 
Mblo  V.  Clark,  6  Wend.  (N.  Y.) 

236 414 

Aiblo  V.  Clark,  3  Wend.  (N.  Y.) 

24 414 

Xichols    V.    Ingersoll,    7    Johns. 

(X.  Y.)    145.   .  .    414 

..ichols  V.  Palmer,  48  Wis.  110.  Ill 
Xichols  V.  Parsons,  6  N.  H.  30-.  171 
Xichols  &   Shepard  Co.  v.   Did- 

rick,  61  Minn.  513.   41 

Xicholson  v.  State,  2  Ga.  363...  431 
.\ick  Peay  Const.  Co.  v.  Miller 

(Ark.  1911),  139  S.  W.  1107-..  144a 
nightingale    v.    Withington,    15 

Mass.   272.    .    .    24 

xilson  V.  Fry,  16  Ohio  St.  552..  194 
axon  V.  Beard,  111  Ind.  137...  195 
:oble  V.  Blount,  77  Mo.  235-...  190 
Noble  V.  Oil  Co.,  69  Pa.  St.  407.   224 

\oll  V.  Smith,  68  Ind.  168 224 

Nolly   V.   County   Court,   11   Mo. 

447.  ...    75 

■  ordly  V.  Winsor,  24  Wash.  535  397 
Norfolk  V.  People,  43  111.  9.. 414,  421 
\orman   v.   Buckner,   135   U.    S. 

500 254 

Vorridgewock    v.    Hale,    80    Me. 

362.   .   .   . 70 

Vorris  v.  Towle,  54  N.  H.  290-  •  252 
\orthern  Ins.  Co.  v.  Wright,  76 

N.  Y.   445 360 

N'orthern  Light  Lodge  v.  Ken- 
nedy, 7  N.  H.  146 67 

Northern  Pac.  Ry.  Co.  v.  Owens, 

86  Minn.  188.  .  .    329 

Xorthern  State  Bank  of  Grand 


624 


Table  of  Cases. 


Sec 
Forks  V.  Belle,  19  N.  D.  501, 
509.   .  .  . 2,  4,  339,  363 

North rup  Nat.  Bank  v.  Varner, 
82  Kan.   G91    276 

North  Side  R.  R.  Co.  v.  Worth- 
ington,  88  Tex.  562. 28 

North  St.  Louis  Building  & 
Loan  Assn.  v.  Obert,  169  Mo. 
507 70,  74,  282 

North  St.  Louis  Planing  Mill 
Co.  V.  Essex,  157  Mo.  App.  18.     31 

54 

North  St.  Louis  Planing  Mill  Co. 
V.  Christophel  (Mo.  App. 
1911),  137  S.  W.  295. 49 

Northwestern  Railway  Co.  v. 
Whinary,  10  Exch.  77..... 286,  297 

Northwestern  Townsite  Co.  v. 
Fidelity  &  Deposit  Co.  of 
Maryland,  180  Fed.  702 285 

Norton  V.  Bank,  61  N.  H.  58928,     29 

Norton  v.  Coons,  6  N.  Y.  33.194,  203 

Norton  v.  Eastman,  4  Me.  521  •  .   362 

Norton  v.  Miller,  25  Ark.  108.59,  266 

Norwalk  v.  Ireland,  68  Conn.  1.   324 

Norwegian  Evangelical  Luth- 
eran, Bethlehem  Congrega- 
tion V.  United  States  &  Fidel- 
ity &  Guaranty  Co.,  83  Minn. 
269   112a 

Norwood  V.  Washington,  136 
Ala.  657.   .   . 201 

Nourse  v.  Weitz,  120  Iowa  708.    177 

189 

Novak  V.  Pitlick,  120  Iowa  286.     54 

Nowland  v.  Martin,  1  Ired.  (N. 
C.)    397.   .  .    180 

Noxon  V.  De  Wolf,  10  Gray 
(Mass.)   43 347 

Noyes  v.  Granger,  51  Iowa  227.     79 

224 

Noyes  v.  Humphreys,  11  Graft 
(Va.)    635 381 

Nugent    v.    Wolfe,    111    Pa.    St. 

471.   .  .   . 382,  383 

Nunn  V.  Carroll,  83  Mo.  App.  135  374 


Sec.. 
Nunnery  v.  Day,  64  Miss.  457..   263 
Nutton  V.  Isaacs,  30  Graft  (Va.) 
740.   .  .   . 272 

O 

Oak  V.  Dustin,  79  Me.  23 32 

Oakeley   v.   Parsheller,   4   CI.  & 

F.    207    21 

Oakland  Bank  Savings  v.  Mur- 

fey,  68  Cal.  455 336 

Obert   Brewing   Co.   v.    Wabash 

R.  Co.,  145  Mo.  App.  30 341 

O'Brien  v.  Champlain  Construc- 
tion Co.  (U.  S.  C.  C),  107  Fed. 

338 363 

O'Conner  v.  State,  18  Ohio  225.     65 

243 
O'Conner  v.  Bragly,  112  Cal.  31.  139 
Odell  V.  Wootten,  38  Ga.  224-  ..  •  224 
Odlin  V.  Greenleaf,  3  N.  H.  270. .  200 
Odom   V.    Owen,   2   Baxt.    (Tenn.) 

446.  .  .   203,  209 

Oelrichs  v.  Spain,  15  Wall.   (U. 

S.)    211 237 

Offord  V.  Davis,  12  C.  B.  N.   S. 

7 87,  346,  367 

Ofterdinger  v.  Ford,  92  Va.  636.   219 

231 

Ogden  V.  People,  62  111.  63 423 

Oglebay  v.  Todd,  166  Ind.  250..     11 
Ohio,  Etc.  R.  R.  Co.  v.  Hardy,  64 

Ind.  454.  .  .   27 

Ohio  Life  Ins.  Co.  v.  Reeder,  18 

Ohio   St.   40.   .    151 

Olaughlin  v.  Carr,  9  Kan.  App. 

818.    .    .    .    238 

Olcott  V.  Lilly,  4  Johns.  (N.  Y.) 

407 408,  412 

Odlham    v.   Brown,   28   Ohio   St. 

41 ...194a 

Olmstead  v.  Latimer,  158  N.  Y. 

313 114 

Olmsted    v.    Olmsted,   38    Conn. 

309.  ... 68 

Olney  v.  Greene,  13  R.  L  350 111 

Olson  v.  Chism,  21  Ind.  40 US' 


Table  of  Cases. 


525 


Sec. 

Olson  V.  Fish,  75  Minn.  228 59 

Omaha  National  Bank  v.  John- 
son,  111  Wis.   372.    122 

Opp  V.  Ward,  125  Ind.  241 157 

191,  224 
Oppenheimer     v.     Hamrick,     86 

Iowa  585.  .  .  . 280 

Ordinary  v.  Heishon,  42  N.  J.  L. 

15 267 

Ordinary  v.  Smith,  55  Ga.  15.-  263 
Ordinary  v.  Thacher,  41  N.  J.  L. 

403 50 

Orem  v.  Wrightson,  51  Md.  34.  .  338 

Ormer  v.  Young,  1  Holt  N.  P.  84  143 
Orrick  v.  Colston,  7  Gratt.  (Va.) 

189.    .    . 347 

Orton  V.  Lincoln,  156  111.  499..  311 

Orton  V.  Noonan,  32  Wis.  220-.  404 
Oshorn   v.   Robbins,    36    N.    Y. 

365 32,    92,  136 

Osborne  v.  Baker,  34  Minn.  307  394 

Osborne  v.  Harper,  5  East  225.  187 
Osborne  &  Co.  v.  Gullikson,  64 

Minn.  218 342,  347 

Osborne  &  Co.  v.  Stone,  30  Minn. 

25 26 

Osgood  V.  Miller,  67  Me.  174...  117 

Osterly  v.  Baker,  66  N.  Y.  433 .  .  197 
Oswald  V.  Berwick,  1  El.  &  B. 

295  ... 71 

Otis  V.  Von  Storch,  15  R.  I.  41 . .  171 

Otto  V.  Jackson,  35  111.  349 60 

Overend  v.  Financial   Corp.,  L. 

R.   7   H.   L.   348 21 

Ovington  v.  Smith,  78  111.  250..  232 

Owen  V.  Homan,  13  Beav.  196  116 
Owen  V.   Homan,   4   H.   L.   Cas. 

997.  .  . 126 

Owen  V.  Long,  112  Mass.  403...  24 

Owen  V.  McGehee,  61  Ala.  440. .  22 

195,  198 
Owen  &  Co.  v.  Storms  &  Co.  (N. 

J.  L.  1909),  72  Atl.  441 28,  30 

Owens     V.     Mynatt,     1     Heisk. 

(Tenn.)   675 32 

Owings  V.  Arnot,  33  Mo.  406 .. .  102 


Sec. 
Owings     V.     Owings,     3     J.     J. 

Marsh.  590.  .  .   186 

O.xford  Bank  v.  Hynes,  8  Pick. 

423 353 

Oxford  Bank  v.   Lewis,  8  Pick. 

(Mass,)    458.   .    .    121 

P. 

Pace  V.  Pace's  Adm'r,  95  Va.  792  201 
Pacific  National  Bank  v.  Aetna 

Indemnity  Co.,  33  Wash.  428. .  443 
444,  446,  447 
Pacific  National  Bank  v.  Mixter, 

124  U.  S.  721  221 

Pack  V.  State,  33  Ark.  235   431 

Pahlman  v.  Taylor,  75  111.  629.  .       8 

108,  362 
Paige  V.  Parker,  8  Gray  (Mass.) 

211    348,  355 

Paine  v.  Vorhees,  26  Wis.  522..  116 
Pake  V.  Wilson,  127  Ala.  240..   381 

398 
Palmer  v.  Bagg,  56  N.  Y.  523-.     79 

Palmer  v.  Blinn,  55  Ind.  11 393 

Palmer  v.  Merriwether,  7  J.  J. 

Marsh    (Ky.)    506    412 

Palmer  v.  Pettingil,  6  Idaho  346  337 
Palmer  v.  Pollock,  26  Minn.  433  258 
Palmer  v.  Witcherly,  15  Neb.  98  397 
Palmeter  v.  Casey,  63  Wis.  426-  ■  11 
Pam   V.   Stackhouse,  38   Pa.   St. 

342    342,  343 

Pardee  v.  Markle,  11  Pa.  St.  555  97 
Parham    Sewing    Mach.    Co.    v. 

Brock,  113  Mass.  194..  79,  83,  101 

Parish  v.  Smith,  66  S.  C.  424 238 

Park  V.  Ensign,  66  Kan.  50 65 

Parker  v.  Bidwell,  3  Conn.  84  •  -  428 
Parker  v.  Bradley,  2  Hill  (N.  Y.) 

584   54 

Parker  v.  Heaton,  55  Ind.  1 397 

Parker  v.  Medsker,  80  Ind.  155  260 

301 

Parker  v.  Pitts,  73  Ind.  597 49 

Parker  v.  Watson,  72  111.  301 ....  1I7 
Parker  v.  Wise,   6   Marsh  &   S. 

239  77 


526 


Table  of  Cases. 


Sec. 
Parker  Land  &  Improvement  Co. 

V.  Ayers,  43  Ind.  App.  513 ...  .  100 
Park  Hotel  Co.  v.  Fourth  Na- 
tional Bank,  86  Fed.  743 30 

Parkhurst  v.  Vail,  73  111.  343  39,  342 
Parlin  «6;  Orendorff  Co.  v.  Hut- 
son,  198  111.  389    122 

Parmalee    v.    Lawrence,    44    111. 

405    116,  133 

Parnell  v.  Hancock,  48  Cal.  452  224 

Parrish  v.  State,  14  Md.  238 419 

Parsons  v.  Briddock,  2  Vern.  608     73 

168,  406 
Parsons  v.   Dickinson,  23   Mich. 

56   89 

Parsons  v.  Goyle,  11  Ala.  280..  173 
Parsons   v.   Harrold,  46  W.  Va. 

122    46,  115 

Parsons  v.  Kelso,  141  Mo.  App. 

369   387 

Parsons   v.    Nields,    137    Pa.    St. 

385   191 

Patchin  v.  Cromack,  13  Vt.  330  24 
Patnode  v.  Deschenes,  15  N.  W. 

100    113b 

Patterson  v.  Brock,  14  Mo.  473  171 
Patterson  v.  Cone,  61  Mo.  439 .  -     92 

135 
Patterson  v.  Gibson,  81  Ga.  802  32 
Patterson    v.    Patterson,   23    Pa. 

St.  464 194 

Patterson  v.  Reed,  7  Watts  &  S. 

144  353 

Patterson's    Appeal,    48    Pa.    St. 

342  277 

Pattison  v.  Hall,  9  Cow.  (N.  Y.) 

747   97 

Paul  V.  Berry,  78  111.  158...  10,  194 
Paul  V.  Jones,  1  Term  R.  599..  6 
Paul   V.   Stackhouse,   39   Pa.   St. 

302   40 

Paulin    V.   Kaighn,    29    N.    J.    L. 

480    194,   194a 

Paulin  Jail  Building  &  Mfg.  Co. 

V.  Collins,  138  Wis.  494..  112a.  128 
Pavis  V.  Hulett,  26  Vt.  308 151 


Sec^ 

Pawlet  V.  Kelley,  69  Vt.  398 337 

Paxton  V.  State  (Neb.),  81  N.  W. 

383   301 

Payne  v.  State,  45  Ala.  52 42S. 

Payne  v.  Wilson,  1  Man.  &  Ry. 

708   40 

Peabody  v.  Richard  Realty  Co., 

69  Misc.  R.   (N.  Y.)   582 67 

Peabody  v.  State,  4  Ohio  St.  387  328 

334 
Peacock  v.  People,  83  111.  331..     32" 

136 

Peacock  v.  State,  44  Tex.  11 425 

Peake  v.   Estate  of  Dorwin.  25 

Vt.  28    171 

Pearre  v.  Folb,  123  N.  C.  239.  .  .  59- 
Pearson  v.  Parker,  3  N.  H.  366.  •   180 

187 

Peaslee  v.  Reed,  10  N.  H.  489 173 

Peck  V.  Harris,  57  Mo.  App.  467  342 

Peck  V.  Frink,  10  Iowa  193 353 

Peebles  v.  Boone,  116  N.  C.  51, 

57    329,  337 

Peel  V.  Fatlock,  1  Bos.  &  P.  419  143 
Peele  v.  Northcote,  7  Taunt.  478  394 
Peele  v.  Powell,  156  N.  C.  553 . .  378 
386,  390,  397 
Pelton  V.   Spider  Lake  Sawmill 

&  Lumber  Co.,  117  Wis.  569.  .  28 
Pemberton  v.  Oakes,  4  Russ.  154  99^ 
Pendlebury  v.  Walger,  4  Younge 

&   Coll.    424,   441    205.  260 

Pendleton  v.  Bank,  1  Mon.    (Ky. ) 

181   298 

Peninsular  Stove  Co.  v.  Adams 

Hardware  &  Furniture  Co.,  93 

Mo.  App.  237    348 

Penn  v.  Collins,  5  Rob.  (La.)  213  111 
Penn  v.  Howlett,  27  Graft.  (Va.) 

337  52 

Pennington  v.  Seal,  49  Miss.  525  174 
Pennsylvania  R.  Co.  v.  St.  Louis 

A.  &  T.  H.  R.  Co.,  118  U.  S.  290  28 
Pennsylvania  Trust  Co.  v.  McEl- 

roy,  112  Fed.  509  366 

Penoyer    v.    Watson,    11    Johns. 

(N.  Y.)   100   84 


Table  of  Cases. 


i2T 


Sec. 

People  V.  Admire,  39  111.  251 242 

People  V.  Anable,  7  Hill  (N.  Y.) 

33    433 

People  V.  Backus,  117  N.  Y.  196  67 

72,  76,  313 
People   V.    Bartlett,    3    Hill    (N. 

Y.)    570    426,   428,  433 

People  V.  Bennett,  136  N.  Y.  482  433 

436 

People  V.  Bostwick,  32  N.  Y.  445  51 
People   V.    Brady,    19    Civ.    Pro. 

Rep.    (N.  Y.)    372    435 

People  V.  Bugbee,  1  Idaho  88.-  419 

People  V    Burton,  5  Seld.  176..  61 

People  V.  Butler,  74  Mich.  643  ■  .  336 

People  V.  Carroll,  151  Mich.  233  67 
People  V.  Caskney,  44  Barb.  (N. 

Y.)   118   431 

People   V.    Chalmers,    60    N.    Y. 

154    280 

People  V.  Colby,  39  Mich.  456..  336 
People  V.  Collins,  7  Johns.   (N. 

Y.)    549    304,  309 

People  V.  Coman,  5  Daly  (N.  Y.) 

527  434 

People  V.  Cooney,  9  N.  Y.  Supp. 

285   436 

People  V.  Dikeman,  3  Abb.  App. 

Dec.  520  325 

People   V.   Faulkner,    107   N.    Y. 

477   300 

People  V.  Felton,  36   Barb.    (N. 

Y.)    429    431 

People  V.  Fields,  6  Daly    (N.  Y.) 

410   434 

People  V.  Foster,  133  111.  496-.  323 

325,  328 

People  V.  Gordon,  39  Mich.  259  423 

People  V.  Hartley,  21  Col.  585..  54 

People  V.  Hathaway,  206  111.  52  408 

411 
People    V.    Hathaway,    102    111. 

App.    628     405,  411 

People  V.  Higgins,  7  N.  Y.  Supp. 

658    436 

People  V.  Hilton,  36  Fed.  172..  311 

People  r.  Hobbs,  46  111.  App.  206  436 


Sec. 
People  V.  Hoffman,  182   111.  390  242 

244,  261 

People  V.  Hunter,  89  111.  392 256 

People  V.  Huson,  78  Cal.  154 59 

People  V.  Ingersoll,  14  Abb.  Pr., 

N.  S.  (N.  Y.)  23   41* 

People  V.  Jansen,  7  Johns.  (N. 

Y.)  332  170 

People  V.  Johnson,  4  N.  Y.  Supp. 

705   436 

People  V.   Lee,  104   N.  Y.  441-.   339 

People  V.  Lott,  27  111.  215 257 

People  V.  Lucas,  93  N.  Y.  585..   311 

324 
People  V.  MacGregor,  147  App. 

Div.   (N.  Y.)   488    42S 

People  V.  Madden,  8  N.  Y.  Supp. 

531  436 

People  V.  Manning,  8  Cow.    (N. 

Y.)    297    428,  434 

People  V.  McFarland,  9  111.  App. 

275    419,  434 

People  V.  McHatton,  2  Gil.  (111.) 

732    305,  313 

People  V.  McKenna,  62  App.  Div. 

(N.  Y.)   327    423 

People  V.  McReynolds,  102  Cal. 

308    421,  424 

People  V.  Meehan,   14   Daly    (N. 

Y.)   333   434 

People   V.    Mersereau,    74   Mich. 

687    324 

People   V.    Metropolitan    Surety 

Co.,  148  App.  Div.  (N.  Y.)  503  151 
People  V.  Millham,  100  N.  Y.  273  423 

People  V.  Miller,  2  111.  83 1 

People  V.   Miller,    63   App.    DIt. 

(N.  Y.)   11    423 

People  V.  Moon,  3  Scam.  123 310 

People  V.  Morrison,  75  Mich.  30  417 
People  V.   Parker,  146   111.  App. 

534   414 

People    V.     Pacific     Surety    Co. 

(Colo.)  109  Pac.  961 323 

People  V.  Pennock,  60  N.  Y.  421     70 

311 
People  V.  Rice,  79  Mich.  354 65 


^28 


Table  of  Cases. 


Sec. 
People  V.  Rich,  36  App.  Div.  (N. 

Y.)  60   ^.28 

People  V.  Robb,  98  Mich.  397..  426 
People  V.  Rose,  174  111.  310- ■■  443 
People  V.    Russell,   35   Misc.   R. 

(N.   Y.)    765    431 

People  V.  Russell,  4  Wend.    (N. 

Y.)    570    314 

People  V.  Sharp,  133  Mich.  378  51 
People  V.  Skidmore,  17  Cal.  260  416 
People  V.   Smith,   123   Cal.   70-.   301 

311,  337 
People  V.  Smith,  43  111.  App.  217  435 
People  V.  Smith,  2  Hilt.  (N.  Y.) 

523   434 

People  V. 

Y.)    431 
People  V. 


People  V. 


Stager,  10  "Wend.   (N. 

424, 

Toomey,  122  111.  308- 

70,  282, 
Tubbs,  37  N.  Y.  586-. 


People  V.  Vilas,  36  N.  Y.  459- 


426 
66 
311 
428 
438 
280 
313 

People  V.  White,  11  111.  341 172 

People  V.  White,  28  Hun  (N.  Y.) 

289   280 

People  V.  Wissig,  7  Daly  (N.  Y.) 

23    434 

People   V.   Wittermore,   253    111. 

378    134 

People's  Bank  v.  Bank,  101  U.  S. 

181    29,     31 

People's   Bank  v.  Legrand,   103 

Pa.  St.  309  99 

People's    Bank    v.    Stewart,    152 
Mo.  App.  314   ...348,  349,  353,  361 

372 
Peoples'  Build.  Asso.  v.  Worth, 

43  N.  J.  L.  70  71 

Peoples'  Ins.  Co.  v.  McDownell, 

41  Ohio  St.  650   103 

Peoples'  Lumber  Co.  v.  Gillard, 

136  Cal.  55  112 

Peoria  Rubber  Mfg.  Co.  v.  Deer- 

ing,  85  Mo.  App.  131   362 

Peoria   Savings,   Loan  &   Trust 
Co.   V.   Elder,   165   111.   55. 99,  356 


Sec. 
Peoria     Second    Nat.     Bank    v. 

Diefendorf,  90  111.  396    340 

Pepper  v.  Donnelly,  87  Ky.  259  247 
Pequawket  Bridge  v.  Mathes,  8 

N.  H.   139    301 

Perkins  v.  Barstow,  6  R.  I.  505     90 

347 
Perkins  v.  Cheney,  114  Mich.  567     89 

90,  270 
Perkins     v.     Gilman,     8     Pick. 

(Mass.)  229  121 

Perkins    v.    Littlefield,    5    Allen 

370    386 

Perkins  v.  Rudolph,  36  111.  306  241 
Perkins   v.    Stimmel,    114   N.    Y. 

359   364 

Perry  v.  Horn,  22  W.  Va.  381..  318 
Persons  v.  Oldfield  (Miss.  1912), 

57  So.  417    26 

Petefish  V.  Watkins,  124  111.  384  94 
Peters  v.  Bayhill,  1  Hill  (S.  C.) 

237    180,  195 

Peters  v.  Mackay,  20  Wash.  172  138 
Peters  v.  McWilliams,  6  Ohio  St. 

155  163 

Peterson    v.    Russell,    62    Minn. 

220    347,  348 

Pettit  V.  Allen,  64  App.  Div.  (N. 

Y.)   579   238 

Petty  V.  Cooke,  L.  R.  6  Q.  B.  789  96 
Petty  V.  Douglass,  76  Mo.  70  ■  .  114 
Pfenninger  v.   Kokesch,  68   Me. 

81  90 

Pfirshing    v.    Peterson,    98    111. 

App.   70    67,   128,  152 

Phares  v.  Barbour,  49  111.  379..  132 
Phelps  V.  Church,  65  Mich.  231  357 
Phelps  V.  Sargent,  69  Minn.  168  357 
Phelps  V.  Stone,  172  Mass.  355. .  383 
Phelps  V.  Vischer,  50  N.  Y.  74.  .  347 
Philadelphia,   etc.,  R.  R.   Co.  v. 

Little,  41  N.  J.  Eq.  519...  149,  193 
Phillips  V.  Barzeal,  14  Ala.  146  248 
Phillips  V.  Foxall,  L.  R.  7  Q.  B. 

666     88,    127,    143,  292 

Phillips  V.  Preston,  5  How.   (U. 

S.)   277   210 


Table  of  Cases. 


529 


Sec. 
Phillips  V.  Riley,  27  Mo.  386  ...  146 
Phillips  V.   Schall,  21   Mo.  App. 

38   51 

Phillips  V.  Solomon,  42  Ga.  192  94 
Phillips    vi    State    (Ark.    1911), 

140  S.  W.  734   431 

Phillips  V.  Thompson,  2  Johns. 

Ch.   (N.  Y.)   418    151 

Philpot  V.  Briant,  4  Bing.  717- •  170 
Phipsbury  v.  Dickinson,  78  Me. 

457  303 

Phoenix  Ins.  Co.  v.  Tindley,  59 

Iowa  591   60 

Phoenix  Iron  Works  v.  Rhea,  98 

Tenn.  461  144 

Phoenix     Manuacturing    Co.    v. 

Bogardus,  231  111.  528 66,     67 

Pick  V.  Ellinger,  66  111.  App.  570  28 
Pickering     v.     Day,     3     Houst. 

(Del.)   533    143 

Pickersgill  v.  Lahens,  15  Wall. 

(U.  S.)   140    226 

Pickett  V.  Andrews,  135  Ga.  299  144 
Pickett  V.  Bates,  3  La.  Ann.  627  176 

Pico  V.  Webster,  14  Cal.  202 321 

Picot  V.  Signiago,  22  Mo.  587-  •  .  58 
Pidock  V.  Bishop,  3  Barn.  &  Cr. 

605    •  ...126,  141 

Pierce  v.  Atwood,  64  Neb.  92 . .  128 

152 
Piercy  v.  People,  10  111.  App.  219  428 
Piercy  v.  Piercy,  1  Ired.  Eq. 

(N.  C.)  214  226 

Pigot's  Case,  11  Coke  27 102 

Pike  V.  Warren,  15  Me.  390 90 

Pile  V.  McCoy,  99  Tenn.  367 194 

Pima  County  v.  Snyder,  5  Ariz. 

45    54 

Pine  County  v.  Willard,  39  Minn. 

125    69,  292,  303,  307 

Pinkstaff  v.  State,  59  111.  148.  .9,  247 

260 
Pinnell  v.  Hinkle,  54  W.  Va.  119  264 
Pinson  v.  Kirsh,  46  Tex.  29.  .  •  .  222 
Pintard  v.  Davis,  21  N.  J.  L.  632  146 
Piper  V.  Newcomer,  25  Iowa  221  171 

34 


Sec. 
Piper's  Estate,  15  Pa.  St.  533-.  251 
Pitkins  V.  Boyd,  4  G.  Greene  255  2 
Pitt  V.  Prussard,  8  Mees.  &  W. 

538 177,  194a 

Pittsburg,    etc.,    R.    R.    Co.    v. 

Shaeffer,  59  Pa.  St.  350-.  143,  288 
292,  293,  363 
Pittsburg,  etc.,  R.  Co.  v.  Shop- 
per,  59   Pa.   St.   350 290 

Pizzi  V.  Mardello,  23  Pa.  Super. 

Ct.    535    381,  391 

Place  V.  Mcllvane,  38  N.  Y.  96- .  122 
Place  V.  Taylor,  22  Ohio  St.  317  334 

Plant  V.  Storey,  136  Ind.  46 151 

Planters'  Bank  v.  Major,  25  Ky. 

Law  Rep.  702   19 

Platter  v.  Green,  26  Kan.  252..  348 
Pleasant's  Appeal,  75  Pa.  St.383  87 
Plummer  v.   People,  16   111.  358     32 

136 
Plunkett  V.  Machine  Co.,  84  Md. 

529    362 

Plymouth  v.   Painter,   17   Conn. 

585  304 

Poe  V.  Dixon,  60  Ohio  St.  124  • .     11 

12,  192 

Pogue  V.  Joyner,  7  Ark.  462 214 

Point     Pleasant,     Town     of    v. 

Greenlee,  63  W.  Va.  207... 59.  59a 
Polacbeck    v.    Moore,    114    Wis. 

256,  261    48a 

Polak  V.  Everett,  1  Q.  B.  D.  669  113 

130 
Police  Jury  of  Parish  of  Vernon 

V.  Johnson,  111  La.  279 112a 

Polkinghorne   v.   Hendricks,   61 

Miss.  366    115 

Pollard  V.  Stanton,  5  Ala.  451..   171 

Pollock  V.  Cox,  108  Ga.  430 257 

Pond  V.  United  States,  111  Fed. 

989    301,  314 

Poole  V.  Doster,  59  Miss.  258-  •  .  151 
Poole  V.  Dyer,  123  Mass.  363...   214 

Poole  V.  Lowe,  24  Colo.  475 151 

Pooley  V.   Whitmore,   10  Heisk. 

629  26 


530 


Table  or  Cases. 


Sec 
Popper  V.  Senfort,  147  App.  Div. 

(N.  Y.)   371   239 

Popper  V.  State,  22  Ind.  399-  ••  ■     51 
Portage  County  Bank  v.  Lane,  8 

Ohio  St.  495   106 

Porter   v.    First   Nat.    Bank,    54 

Ohio  St.  155   146 

Porter  v   Hodenpuyl,  9  Mich.  11  118 
Porter   v.    Horton,   80    111.    App. 

333 200 

Post  V.  Jackson,  17  Johns.  (N. 

Y.)  239  182 

Post  V.  Losey,  111   Ind.  74.-35,  107 

113 

Post  V.  Shafer,  63  Mich.  85 226 

Postmaster  General  v.  Munger, 

2   Paine  189    308 

Pott  V.  Nathans,   1  Watts  &   S. 

(Pa.)    155    73,  95,  168,  207 

Potter  V.  Brown,  35  Mich.  274.  .   383 
Potter  V.  Gronbeck,  117  111.  404     82 

369 
Potter  V.  Ogden,  136  N.  Y.  384  2'^5 

257,  258 
Potter  V.  State,  23  Ind.  550.-53,  309 
Potter  V.  Titcomb,  7  Me.  302 -.   251 

252 
Potter  V.  Van  Vranken,  36  N.  Y. 

629  228 

Powell  V.  Baer,  143  Ky.  282 24 

Powell  V.  Edwards,  2  Bos.  &  P. 

267   200 

Powell  V.  Kettells,  1  Gil.    (111.) 

49 86 

Powell  V.  Powell,  48  Cal.  234.  .9,  203 
Powell   V.    Smith,    8    Johns.    (N. 

Y.)    250    178,  184 

Powell  V.  State,  15  Ohio  579 431 

Powers  V.  Bumcratz,  12  Ohio  St. 

273    353,   355,  388 

Powers  V.  Clarke,  127  N.  Y.  417  365 

Powers  V.  Nash,  37  Me.  322 194a 

Powers  V.  Rankin,  144  111.  52..   377 

392,  393 
Powers   Dry-Goods  Co.   v.   Har- 
lin.  68  Minn.  193   51 


Sec. 
Pownal   V.  Farraud,   6   Barn.   & 

Cr.  439    176 

Pratt  V.  Conway,  148  Mo.  291  ■  .  11 
Pratt  V.  Fishwild,  121  Iowa  642  397 
Pratt  V.  Hedden,  121  Mass.  113, 

116    41,     42 

Pratt  V.  Humphrey,  22  Conn.  317  374 

387 
Pratt  V.  Northam,  5  Mason  95 .  .  255 
Pratt  V.  Trustees,  93  111.  475.  •  .     87 

Pray  v.  Main,  7  Cush.  253 163 

Preble     v.     Baldwin,     6     Cush. 

(Mass.)    549    374 

Presbey  v.  Thomas,  1  App.  D.  C. 

171   26 

Prescott  V.  Newell,  39  Vt.  82.  .  .  187 
Prescott  V.  Perkins,  16  N.  H.  305  203 
Prescott  V.  Pitts,  9  Mass.  376  ■■  .  255 
Prescott  Nat.  Bank  v.  Head,  11 

Ariz.    213    112c,  174 

President  &  Fellows  of  Harvard 
College  V.  Kempner,  131  App. 

Div.  (N   Y.)  848 24,  92,  111 

Presley  v.  Weakley,  135  Ala.  517  263 
Preston    v.    Campbell,    3    Hays- 
wood  (Tenn.)  20  196 

Preston  v.  Dozier  (Ga.  1910),  68 

S.  E.  793    4 

Preston  v.  Garrard,  120  Ga.  689  20 
Preston  v.  Gould,  64  Iowa  44..  211 
Preston  v.  Huntington,  67  Mich. 

113,    139    101,  111 

Preston  v.  Northwestern  Cereal 

Co.,  67  Neb.  45  30 

Preston     v.     Preston,     4    Gratt. 

(Va.)    88    197,  207 

Price  V.  Bank,  114  111.  317 18 

Price  V.  Barker,  4  El.  &  B.  760  116 
Price   V.    Edwards,    10    B.    &   C. 

578   170 

Price     V.     Oatman      (Tex.     Civ. 

App.),  11  S.  W.  258    350 

Price  v.   Price,   16   Mees.   &  W. 

232   122 

Price  V.  State,  42  Ark.  178 431 

Prickett  v.  People,  88  111.  115..  313 
Primrose  v.  Bromley,  1  Ark.  99  201 


Table  of  Cases. 


531 


ISec. 
Prince  V.  Clark,  127  Mass.  599  217 
Pritchett  V.  People,  1  Gill  (111.) 

525    213 

Pritchett  V.   Wilson,  39   Pa.   St. 

421    339 

Probate  Court  v.  Hazard,  13  R. 

I.  3    244 

Probate    Court    v.    Merriam,    8 

Vt.  234 251,  252 

Probate  Court  v.  Williams,  30  R. 

I.    144    244 

Provenchee  v.  Piper,  68  N.  H.  31  387 
Providence  v.   McCacron,   35  N. 

J.  L  328  316 

Providence  Mach.  Co.  v.  Brown- 
ing, 68  S.  C.  89 342 

Pryan  v.  United  States,  1  Black 

(U.  S.)   140   70 

Puckett  V.  Bates,  4  Ala.  390 381 

Pugh  V.  Conover,  11  W.  Va.  523     93 

185 
Pulaski    Stair    Co.    v.    Miller's 

Creek  Lumber  Co.  (Ky.  1910), 

128  S.  W.  96   340 

Pundmann    v.     Schoenlich,    144 

Mo.  149    301,  311 

Purcell  V.  Steele,  12  111.  93....  213 
Purdy   V.    Peters,    35    Barb.    (N. 

Y.)    239    351,  365 

Purkstall  v.  State,  59  111.  148..  203 
Pursiful    V.    Pineville    Banking 

Co.,  97  Ky.  154  85 

Pursley  v.  Hayes,  22  Iowa  11  ■  •  268 
Putney  v.  Farnham,  27  Wis.  187  384 
Pybus  V.  Gibb,  6  El.  &  B.  902.  .     66 

72,  313 
Putney    v.    Schmidt,    16    N     M. 

400,  120  Pac.  720    66,  141 

Pynes   v.    State,   45   Ala.   52 428 

Q. 

Quimby  v.  Putnam,  28  Me.  419  371 
Quinn  v.  Moss,  45  Neb.  614 362 

R. 

Rabka  v.  People,  73  111.  App.  246  325 
Radcliff    V.    Poundstone,    23    W. 
Va.  724   398 


Sec. 
Rader  v.  Yeargin,  85  Tenn.  486  251 
Ragland  v.  Justices,  10  Ga.  65.  .  263 
Railroad  Co.  v.  Howard,  7  Wall. 

(U.  S.)    392    28 

Railroad  Co.  v.  Quigley,  21  How. 

(U.  S.)  202 28 

Railton  v.  Mathews,  10  CI.  &  F. 

934    126,  140 

Rainey  v.  Yarborough'  37  N.  C. 

249   197 

Rainier  v.  Smith,  65  Misc.  R.  (N. 

Y.)   560   Ill 

Ralston  v.  Wood,  15  111.  171 195 

Ramsay's  Estate  v.  People,  197 

111.   572    67.  301 

Ramsay's   Estate   v.   People,   97 

111.  App.   203    67 

Ramsay's    Estate    v.    Whitbeck, 

183  111.  550 29,  301,  318 

Ramsey    v.    Commonwealth,    83 

Ky.  534,  538    402 

Ramsey  v.  Coolbaugh,  13  Iowa 

164  402 

Ramsey  v.  Lewis,  30  Barb.    (N. 

Y.)  203   208 

Rand  v.  Barrett,  66  Iowa  731-.  169 
Randolph   v.  Flemming,   59   Ga. 

776   113 

Raney     v.     The     Governor,      4 

Blackf.    (Ind.)    2    282 

Ranger  v.  Carey,  1  Met.  (Mass.) 

309   347 

Ranger  v.  Sargent,  36  Tex.  26-.  356 
Rankin  v.  Wilson,  17  Iowa  463. .  151 
Rannsey-Alton  MercantHe  Co.  v. 

Mineral      Belt      Construction 

Co.,  2  Ind.  Terr.  134  441 

Rapp  v.  Ins.  Co.,  113  111.  390..     85 

345 
Rapp  V.  Linebarger  (Iowa),  128 

N.  W.   555    356 

Rathbone  v.  Frost,  9  Wash.  162  365 
Rathborne  v.  Warren,  10  Johns. 

(N.   Y.)    567    411,  414 

Rawlings   v.   Gunstern,   6   Term 

R.  284   412 

Rawlings  v.  State,  38  Neb.  590-  •   434 

435 


532 


Table  of  Cases. 


Sec. 
Rawson    v.    Beekman,   25    N.   Y. 

552   146 

Rawson  v.  Piper,  36  Me.  98....  258 
Rawson   v.   Taylor,  30   Ohio  St. 

389   21 

Ray  V.  Brenner,  12  Kan.  105.  .  . .   172 

Read  v.  Case,  4  Conn.  166 4^4 

Read  v.  Cutts,  7  Greenl.  186 2 

Read  v.  Nash,  1  Wils.  305 383 

Reader  v.  Kingham,  13  C.  B.,  N. 

S.  344    382 

Receivers   of   New   Jersey  Mid- 
land Ry  Co.  V.  Wortendyle,  27 

N.  J.  Eq.  658.    152,  157 

Redfield  v.  Frear,  9  Abb.  Pr.  N. 

S.  (N.  Y.)  444 404 

Redfield  v.  Haight,  27  Conn.  31.  183 
Redmon  v.  Mauel,  73  Ind.  593..  86 
Red    River    National    Bank    v. 

Bray    (Tex.    Civ.    App.    1911), 

132  S.  W.  968.  .  . 125 

Red    Wing    Sewer    Pipe    Co.    v. 

Donnelly,  102  Minn.  192.   ....     59 
Redwood  Co.  v.  Tower,  26  Minn. 

45.  .  .  . 310 

Reed     v.      Commonwealth,      11 

Serg.  &  R.  (Pa.)  441 244 

Reed  v.  Fish,  59  Me.  359 354 

Reed  v.  Flipper,  47  Ga.  273 114 

Reed  v.  Garvin,  12  S.  &  R.  (Pa.) 

100 128,  357 

Reed  v.  Hedges,  16  W.  Va.  194.   304 

Reed  v.  Hume,  75  Utah  248 258 

Reed  v.  Lane,  61  Vt.  481. 24 

Reed  v.  Nash,  1  Wilson  305.  ... .  401 
Reed  v.  Norris,  2  Myl.  &  Cr.  362.  186 
Reed  v.  Police  Court,  172  Mass. 

427.  .   .   . 425 

Rees  v.  Berrington,  2  Ves.  540. .   113 
Reese  v.  United  States,  9  Wall. 
(U.    S.)    13.. 55,   102,   413,  414,  427 
430,  431 
Reeves    &    Co.    v.    Jouell    (Tex. 

Civ.  App.  1911),  140  S.  W.  364     2a 

87,  93a 
Reeves  v.  Pullian,  7  Baxt.  119. .   173 


Sec. 
Regan  v.  Williams,  185  Mo.  620.     11 

Reherd  v.  Long,  77  Va.  839 244 

Reifsnider  v.  Lee,  44  Iowa  101-  .   323 
Reigart  v.  White,  52  Pa.  St.  438       2 
4,  45,  348,  376 
Reinhard  v.  Columbus,  49  Ohio 

St.  257.  .  .  . 437 

Reinhart   v.    Johnson,    62    Iowa 

155 208 

Reints     v.     Uhlenhopp      (Iowa 

1910),   128  N.  W.   400 94,  122 

Remsen  v.  Graves,  41  N.  Y.  471.  123 
Remsen  v.  Storm,  157  N.  Y.  705.  385 
Renfroe  v.  Colquitt,  74  Ga.  618.  318 
Republic  Mfg.  Co.  v.  Fuchs,  151 

111.  App.  260  .  . 341 

Reissans  v.  White,  128  Mo.  App. 

135.  .  ..2a,  66,  101,  112a,  112b,  112c 
Ressiter  v.   Waterman,   151   III. 

169 382,  383,  386,  396 

Revell  V.  Thrash,  132  N.  C.  803.   113 

113b,  119 
Revel   Realty   &    Securities   Co. 
V.  Maxwell,  65  Misc.  R.  (N.  Y.) 

54 93a,  100,  111 

Revel   Realty   &    Securities   Co. 
V.  INIaxwell,  115  N.  Y.     Supp. 

1033.   .   .   .    Ill 

Rex  V.  Finmore,  8  T.  R.  409...   434 

Rex  V.  Spencer,  1  Wils.  315 434 

Rey   V.    Simpson,    22    How.    (U. 

S.)    341.   .  . 347 

Reynolds    v.     Barnard,    36     111. 

App.   218.    .   .    375 

Reynolds  v.  Harral,  2  Strob.  (S. 

C),  87   415,  416 

Reynolds    v.    Reynolds,    11    Ala. 

1023 256 

Reynolds  v.  Ward,  5  Wend.   (N. 

Y.)    501.   ...    49 

Rhode  V  McLean,  101  111.  467,.  129 
Rice  V.  Loomis,  130  Mass.  302..  82 
Rice  V.  Rice,  14  B.  Mon.    (Ky.) 

335 188,  194a 

Rice  V.  Sanders,  152  Mass.  108 .  •     11 


Table  of  Cases. 


533 


Sec. 
Rice     V.     Southgate,     16     Gray 

(Mass.)    142.  ..    152,  174,  301 

Rice  V.  Watson,  129  Mich.  520-  -   262 

Rich  V.  Starbuclf,  51  Ind.  87 56 

Rich  V.  Warren,  135  Ga.  394 145 

Richards   v.   Heller    (Iowa,   1911), 

133  N.  W.  393    220 

Richards  v.  Market  Exch.  Nat. 

81  Ohio  St.  348.. 48a,  93a,  100,  113 
Richards  v.  Morse,  36  Me.  240.  .  407 
Richards    v.    Storer,    114    Mass. 

101 218 

Richardson  v.  Allen,  74  Ga.  719.  339 
Richardson  v.  Chemical  Labora- 
tory, 9  Met.   (Mass.)    42 158 

Richardson  v.  Draper,  87  N.  Y. 

337 86 

Richardson  v.  Peoples'  National 

Bank,   57   Ohio   St.   299 65,  237 

238 
Richmond    v.    Kasey,    30    Gratt. 

218 127 

Richmond     v.     Moore,     107     111. 

429 49,  351 

Richmond     Co.     v.     Wandel,     6 

Lans.    (N.   Y.)    33.    318 

Richmond,    Etc.    R.    R.    Co.    v. 

Kasey,  30  Gratt.   (Va.)   21 143 

Richner  v.  Krenter,  100  111.  App. 

548.   .   .   .    341 

Richter  v.  Frank,  41  Fed.  859-  370 
Rickens  v.  Miller,  83  N.  C.  543.  .  209 
Ricketson  v.  Giles,  91  111.  154..  177 
Riddel  v.  School  Dist,  15  Kan. 

168 70,  305 

Riddle  v.  Baker,  13  Cal.  295 ..  .  65 
Riddle  v.  Thompson,  104  Pa.  St. 

330.  .  .   4,  348 

Riggen     v.     Commonwealth,     3 

Bush   (Ky.)   493 434 

Rindskopf   v.    Dornan,    28    Ohio 

St.  516.  .  .   118 

Ringeman  v.  State,  136  Ala.  131  423 
Ringgold  V.  Newkirk,  3  Ark.  96.  2 
Rinhard  v.  Calemby,  49  Ohio  St. 

257.   .   .   .    402 


Sec. 
Rintoul  V.  White,  108  N.  Y.  222.  392 
Ripley    Building   Co.    v.    Coors, 

37  Colo.  78    112 

Rison  V.  Young,  7  Martin  N.  S. 

(La.)    298.  .  .    253 

Ptittenhouse    v.    Ammerman,    64 

Mo.   197 246 

Rittenhouse    v.    Kemp,    37    Ind. 

258 122 

Rittenhouse     v.     Leversing,     6 

Watts  &  S.  (Pa.)   190.   165 

Ritter  v.  Singmaster,  73  Pa.  St. 

400 125 

Rizer  v.  Callen,  27  Kan.  339...   180 

187 
Roach  V.  Summers,  20  Wall.  (U. 

S.)    165.  .  . 101 

Roach    V.    Thompson,    M.    &   M. 

487.    .   . 183 

Robbins  v.  Apgar,  10  Mo.  538-.  397 
Robbins    v.    Bingham,    4    Johns. 

(N.  Y.)    476.  .  .  .   357 

Robbins  v.  Burridge,  128  Mich. 

25.  .  . 253 

Robenson    v.    Maxcey,    6    Dana 

(Ky.)    104 195 

Robeson  v.  Roberts,  20  Ind.  155.  131 
Robeson  v.  Thompson,  9  N.  J.  L. 

97.  .  .  .    405 

Roberson     v.     Blevin.s,     57     Kan. 

50.  .  .  .   52 

Robert-Gair     Co.     v.     Columbia 

Rice  Packing  Co.   (La.  1909), 

50  So.  8.  .  .    28 

Roberts  v.  Gordon,  86  Ga.  386..  431 
Roberts    v.    Hawkins,    70    Mich. 

566.  .  .  .    2,  349 

Roberts  v.  Laramie  County, 

8  Wyo.  177,  56  Pac.  915 317 

Roberts    v.    Riddle,    79    Pa.    St. 

648 348 

Roberts  v.  Sully,  2  App.  Div.  (N. 

Y.)   152 362 

Roberts    v.    Trust    Co.,    83    111. 

App.  463 2a, 


534 


Table  of  Cases. 


8ec. 
Robertson  v.  Deatharge,  82  111. 

511 10,  165,  199 

Robertson    v.    Trigg,    32    Gratt. 

(Va.)    76    196,  338 

Robinson   v.  Boyd,   60   Ohio  St. 

57 3,  7,  194,  203 

Robinson    v.   Gould,    11    Gush. 

(Mass.)    55,  57.  .  .   32,  136 

Robinson  v.  Hodges,  117  Mass. 

222.   .   .   .    243 

Robinson  v.  Hyer,  35  Fla.  344-.  341 
Robinson  v.  McDowell,  130  N.  C. 

246 201,  210 

Robinson  v.  Millard,  133  Mass. 

236 244 

Hobinson  v.  Offritt,  7  T.  B.  Mon. 

(Ky.)   540.  .  .    ■  ■  •  •    122  ' 

Robinson  v.  Plimpton,  25  N.  Y. 

484 224,  225 

Robinson  v.  Reid,  46  Iowa  219-  •  109 
Robinson  v.  Wells,  38  Wis.  330.363 
Rocco     V.     Cicalla,     12     Heisk. 

(Tenn.)    508.  .  .  .    ...........   250 

Rocherean     v.    Jones,     29     La. 

Ann.  82.  .  . 336 

Rochester  v.  Randall,  105  Mass. 

295.  .  .   69,  273,  301 

Rochester  City  Bank  v.  Elwood, 

21   N.  Y.   88.   . 80,  285 

Rock  V.  Stringer,  36  Ind.  346-.  316 
Rockford  Ins.  Co.  v.  Rogers,  15 

Colo.  App.  23.  .  .    69 

Rockford   Sendon  Nat.  Bank  v. 

Gaylord,   34    Iowa   246 349 

Rock  Island  v.  Mercer  County, 

24  111.  35.  .  . 437 

Rockville     National     Bank     v. 

Holt,  58  Conn.  526.  .    ....116,  117 

Rodgers  Shoe  Co.  v.  Coon,  157        ' 

Mich.  547.  .   .    66,  100 

Hoe  V.  Riser,  62  Ark.  92 185 

Roeder     v.     Neidermeier,      112 

Mich.  608.  .  . •••.   208 

Hogers  v.  Gennett  Lumber  Co., 

154  N.  C.  108  392 

Rogers  v.  Goswell,  51  Mo.  466. .  358 


Hko. 
Rogers  v.  Harvey,  143  Kj.  88..  357 
Rogers    v.    Hazel     (Ky.     C.     A. 

1912),   144   S.   W.  49 171,  174 

Rogers    v.    Jewell    Belting    Co., 

184  111.  574.  ...   30 

Rogers  v.  Kneeland,   13   Wend. 

(N.  Y.)  114.  .  .  388 

Rogers  v.  State,  99  Ind.  218...     69 
Rogers     v.     Trustees,     46     111. 

428 130,  152,  170 

Rollstone   Nat.   Bank   v.   Carle- 
ton,  136  Mass.  226.  .  .  285,  286 

Rolston  V.  Click,  1  Stew.  526..  26 
Romine    v.    Howard    (Tex.    Civ. 

App.  1906),  93  S.  W.  690 441 

Romine  v.  Romine,  59  Ind.  346.  180 
Roper   V.   Sangamon   Lodge,   91 

111.  518 51,  70,  126,  140,  141 

288,  289 
Rorer  v.  Ferguson,  96  Va.  411.-  152 
Rosenbaum  v.  Goodman,  78  Va. 

121.  .  .  . 3,  203,  204 

Rosenberg    v.    Klopfer,    117    N. 

Y.  Supp.  102. 361 

Rosenthal   v.   Perkins,   123   Cal. 

240 131,  216 

Ross  v.  Allen,  67  111.  317...  176    187 

Ross  v.  Espy,  66  Pa.  St.  481 210 

Ross  V.  Hatch,  5  Iowa  149 316 

Ross  v.  Jones,  22  Wall.   (U.  S.) 

576.  .  .  . 16,  146 

Ross  v.  Menefee,  125  Ind.  432.  .  .  175 
Ross    v.    Wallenberg,    31    Greg. 

269.  .  . 382 

Ross    V.     Williams,     11     Heisk. 

(Tenn.)    410 276 

Rothermal   v.   Hughes,   134    Pa. 

St.   510.   .   .    126 

Rothlinger  v.  Wonderly,  66  111. 

390 224 

Rottman  v.  Fix.  25  Mo.  App.  571  399 
Rouse    V     Banking   Co.    (1894), 

App.  Cas.  586.  .  .   21 

Rouse  V.  Mohr,  29  111.  App.  321 .  38 
Rouss  V.  Cregler,  103  Iowa  60.  •  356 
Rouss  V.  King,  74  S.  C.  251.  .100,  151 


Table  of  Cases. 


535 


Sec. 
Roussel  V.  Matthews,  171  N.  Y. 

634 391 

Roussel    V.    Matthews,    62   App. 

Div.   (N.  Y.)   1 381,  391 

Routan  v.  Lacey,  17  Mo.  399 145 

Routt  V.  Dils,  40  Colo.  50 144a 

Rowe    V.    Bowman,    183    Mass. 

488 129 

Rowe  V.  Buchtel,  13  Ind.  38   146 

Rowe   V.   State,  2   Bay.    (S.   C.) 

565 418 

Rowell  Mfg.  Co.  V.  Isaacs   (Mo. 

App.  1910),  128  S.  W.  760....  348 
Rowland  v.  Stevenson,  6  N.  J.  L. 

149 408 

Royal  Ins.  Co.  v.  Davis,  40  Iowa 

469.   .   .   . 345 

Royse  v.  Winchester  Bank  (Ky. 

C.  A.  1912),  146  S.  W.  738.  ..  .  99 
Rubish  V.  State,  112  Ind.  107...  423 
Rucker  v.  Robinson,  38  Mo.  154.   114 

116 
Rudolf  V.  Hewitt,  11  S.  D.  646..   361 

247 
Rudolf  V.  Malone,  104  Wis.  470.   203 

Rudy  V.  Rudy,   145  Ky.  245 259 

Rugglely  V.  Covey,  3  Conn.  419.  412 
Rule  v.  Anderson,  160  Mo.  App. 

347 112a,  442,  443,  448 

Rumberger    v.    Golden,    90    Pa. 

St.  34 44,     48 

Rumley  Co.  v.  Wilcher,  23  Ky. 

Law  Rep.  1745.  ...  42,  110 

Runde  v.  Runde,  59  111.  98 384 

Rush  V.  State,  19  Ind.  App.  523.   262 

Rusher  v.  State,  94  Ga.  363 323 

Russell   V.   Annabel,   109    Mass. 

72.   .   .   .    54 

Russell  V.  Buck,  14  Vt.  147....  370 
Russell  V.  Clark,  7  Cranch   (U. 

S.)  69 151,  347 

Russell  V.  Failor,  1  Ohio  St.  327  190 
Russell  V.  Fenner,  21  Ohio  Cir. 

Ct.  R.  527 374 

Russell  V.  Freer,  56  N.  Y.  67.50,    51 


Sec. 
Russell  V.  Mosley,  3  Brod.  &  B. 

211 39 

Russell  V.  State,  45  Ga.  9 434 

Russell  V.  Wiggin,  2  Story  213.  356 
Ruston    V.    Dierks    Lumber   Co. 

(Neb.  1902),  89  N.  W.  616....  363 
Rutter  V.  Hall,  31  App.  647.  ....  257 
Ryan    v.    Krusen,    76    Mo.    App. 

496 195 

Ryan  v.  Morton,  65  Tex.  258.66,  103 
Ryan  V.  People,  165  111.  143..  138  265 
Ryan    v.    Pistone,    89    Hun    (N. 

Y.)    78.  .  .    385 

Ryan  v.  Trustees,  14  111.  20..  18,  67 
Ryan  v.  Williams,  29  Kan.  487. .  66 
Ryers  v.  Alcorn,  6  111.  App.  39.  212 
Ryler  v.  Clark,  3  B.  Mon.  (Ky.) 

262 115 

S. 

Sacramento   v.   Dunbar,  14  Cal. 

421 54 

Sage    v.    Hammonds,    27    Gratt 

(Va.)  651 264 

Sage  v.  Strong,  40  Wis.  575 100 

226,  227 

Sarles  v.  Court,  7  R.  I.  270 253 

Saint  V.  Wheeler  &  Wilson  Mfg. 

Co.,  95  Ala.  362.  . 127 

Salem  v.  Clintock,  16  Ind.  App. 

656 67 

Saline  County  v.  Brice,  65  Mo. 

63 ISO 

Salt  Lake  City  v.  Hollister,  118 

W.  S.  256,  263 30 

Salt  Springs  Nat.  Bank  v.  Pratt. 

135  N.  Y.  423 .359,  360 

Salyers  v.  Ross,  15  Ind.  130 204 

Sample  v.  Hale,  34  Neb.  221.  ...  112 
Sampson  Co.  v.  Commonwealth, 

208  Mass.  372 112 

Sampson  Co.  v.  Commonwealth, 

202  Mass.  326 .112c 

San  Antonio  Brewing  Assn.  v. 

Abbott  Oil  Co.  (Tex.  Civ,  App. 

1910),  129  S.  W.  373 446 


536 


Table  of  Cases. 


Sec. 
Sanchez     v.     Foster,     133     Cal. 

614 253,  256 

Sanders   v.   Gillespie,   59   N.   H. 

250 383 

Sanders  v.  Herndon,  29  Ky.  Law 

Rep.  322.  .  .  .    194 

Sanders  v.  Keller,  18  Idaho  590  48a 
Sanders    v.    Wellburg,    107    Ind. 

266.  .     . 201,  208 

Sanderson  v.  Oston  L.  R.  8  Ex. 

73.  .  .  .    88,  143,  292 

San    Diego   First   Nat.   Bank   v. 

Babcock,  94  Cal.  102.  .  .  ....   339 

Sandoval  v.  United  States  Fi- 
delity   &     Guaranty    Co.,     12 

Ariz.   348.   .   . 438 

Sandwich      v.      Fish,      2      Gray 

(Mass.)    298.   .    .    .•■•.. 337 

Sanford      v.      Allen,      1      Cush. 

(Mass.)    473.  .  . 359 

Sanford    v.    Bulkley,    30    Conn. 

344. .    158 

Sanford  v.  Gilman,  44  Conn.  461  253 
San   Francisco   v.   Mulcrevy,   15 

Cal.  App.  11    313,  329 

Sanger  v.  Hibbard,  104  Fed.  455  24 
Sangster  v.   Commonwealth,   17 

Graft  (Va.)  124.  .  . 324 

San  Luis  Obispo  County  v.  Mur- 
phy (Cal.  S.  C.  1912),  123  Pac. 

808.  ...    .......34,  428 

San  Roman  v.  Watson,  54  Tex. 

254 54 

Sapiro  v.  Sisley,  125  N.  Y.  Supp. 

467.   .   .   .    ■•■■•    130 

Sapp  V.  Aiken,  68  Iowa  699  ...  180 
Sargent   v.    Johns,    206    Pa.    St. 

386 377,  381 

Sather  Banking  Co.  v.  Arthur  R. 

Briggs  Co.,  138  Cal.  724.  .2,     67 

122    134 

Savage  v.  Carleton,  33  Ala.  443.   146 

Savage  v.  Fox,  60  N.  H.  17.-35,     39 

Savage  v.  First  National  Bank, 

112  Ala.  508.  . 36,  41,     42 


Sec. 
Savings  Bank  v.  Hunt,   72  Mo. 

597.  .  .   70,  305 

Sawyer  v.   Campbell,   107   Iowa 

397 51,  55,  113 

Sawyer  v.   Chambers,   43   Barb. 

(N.  Y.)    622 CC6 

Sawyer  v.  Ferworld,  59  Me.  550  36 
Sayers  v.  Cassell,  23  Graft  (Va.) 

523.  .  .  .   260 

Sayles  v.  Sims,  73  N.  Y.  551 165 

Sayles,  In  re,  84  App.  Dlv.    (N. 

Y.)    210.  .   .   .    434,  436 

Sayward    v.    Conant,    11    Mass. 

146 411 

Scarratt   v.    Cook   Brewing'  Co., 

117  Ga.  181.  .  .   144a 

Schaeffer  v.  Strieder,  203  Mass. 

467    374,  396 

Scheid  v.  Liebshultz,  51  Ind.  38  298 
Scheizer   v.    Minhead,    84    N.   Y. 

Supp.   159..  .  .    381 

Schley  v.  Merrett,  37  Md.  352..  347 
Schmitzel's  Appeal,  49  Pa.  St.  23  207 
Schneider   v.   Commonwealth,   3 

Met.  (Ky.)  409.  ...  425 

Schock  V.  Miller,  10  Pa.  St.  401.  133 
Schoenlwald    v.    Dieden,    8    111. 

App.  389 167 

Scofield   V.   Churchill,   72   N.   Y. 

565    9,  203,  247,  276 

Scholle   V.   Metropolitan   El.   R. 

Co.,  62  App.  Div.  (N.  Y.)  617..  143 
School    Directors   v.   Brown,   33 

La.  Ann.  383.  . 33 

School  District  No.  80  v.  Lap- 
ping, 100  Minn.  139 54 

School  Dist.  of  Kansas  City  ex 

rel.     Koken    Iron    Works    v. 

Libers,  147  Mo.  580.  .  .   112 

Schoolfield  v    Rudd,  9  B.  Mon 

291.      ..  .    163 

Schoonover    v.    Allen,    40    Ark. 

132 164 

Schoonover     v.      Osborne,      108 

Iowa  453,  79  N.  W.  263 .  .  .361,  374 
Schott  V.  Youree,  142  111.  233-.   238 


Table  of  Cases. 


53T 


Schram  v.  Werner,  85  Hun   (N. 

Y.)   293.  ...   7 

Schuerer  &  Sons  v.  Stone,  100 

N.   Y.   560    -^n 

Schuerer  &  Sons  v.  Stone,    ■  • 

App.  Div.   (N.  Y.)   796 377 

Schumark  v.  Art  Metal  Nov.  Co., 

84  Conn.  331    215 

Schuster  v.  Weiss,  114  Mo.  158  72 
Schuyver    v.    Hawkes,    22    Ohio 

St.  308 56 

Schwartz    v.    Smith,    143    App. 

Div.  (N.  Y.)  297.  .  .   113,  114 

Schwarzschild  &  Sulzberger  Co. 

V.  Cryan,  167  Mich.  377 412 

Scott  V.  Bryan,  96  N.  C.  289- .. .  196 
Scott  V.  Hall,  6  B.  Mon.    (Ky.) 

285 115 

Scott  V.  Hunt,  92  Tex.  389 329 

Scott  V.  Macy,  3  Ala.  250 217 

Scott  V.  Ryan,  115  Ala.  587.  .325,  326 
Scott  V.  Scruggs,  60  Fed.  721...   171 

Scott  V.  State,  46  Ind.  203 311 

Scott  V.  State,  1  Head.   (Tenn.) 

433 419 

Scott  V.  Timberlake,  83  N.  C.  382  144 
Scott  V.  Whipples,  5  Me.  336-  -.  54 
Scott  Co.  V.  Ring,  29  Minn.  398. .     70 

305,  313 
Scotten  V.  Fegan,  62  Iowa  236-  .  336 
Screwmen's    Benev.     Assoc,     v. 

Smith,  70  Tex.  168.   292 

Screws  v.  Watson,  48  Ala.  628.  .  231 
Scribner  v.  Adams,  73  Me.  541. .  208 
Scribner  v.  Rutherford,  65  Iowa 

551 348 

Scully  V.  Kirkpatrick,  79  Pa.  St 

324 428 

Seabrook,  Town  of  v.  Brown,  71 

N.  H.  618.  .  . 337 

Seans  v.  Van  Dusen,   25   Mich. 

351 .224 

Searles  v.  City  of  Flora,  225  111. 

167 67a 

Sears  v.  Swift,  66  111.  App.  496.   348 


iSEC 

Seaton     v.     McReynolds     (Tex. 

Civ.  App.  1903),  72  S.  W.  874.  51 
Seattle,  City  of  v.  Griffith  Realty 

&  Banking  Co.,  28  Wash.  605.  51 
Seavers     v.     Phelps,     11     Pick. 

(Mass.)   304.  .  .    . 25 

Sebastian  v.  Bryan,  21  Ark.  447.  260 
Sebold      V.      Citizens'      Deposit 

Bank,  31  Ky.  Law  Rep.  1244-  .  141 
Security  Ins.  Co.  v.  Ins.  Co.,  50 

Conn.  233.  .  . 196,  197 

Sedberry  v.  Conner,  77  N.  C.  319  411 
Seeberger  v.  Wyman,  108  Iowa 

527 26 

Seeley     v.     Brown,     14     Pick. 

(Mass.)   177 411 

Seely  v.  People,  27  111.  173.  ... .  315 
Seeman   v.   Inman,   6   Mo.   App. 

384 394 

Segan  v.  Mazzer,  116  La.  1026..  112c 
Seitzler   v.    Mishler,    37    Pa.    St. 

82 22 

Selby  V.  City  of  New  Orleans,  19 

La.   900.   .   .   .    54 

Sellers      v.      Territory      (Okla. 

1911),  121  Pac.  228 126 

Selser  v.  Brock,  3  Ohio  St.  302.     57 

78,  315 
Semmes    v.    Naylor,    12   Gill.   & 

J.    (Md.)    358.   .   . 168 

Semple  v.  Pink,  1  Exch.  74....  341 
Sentinel  Co.  v.  Smith,  143  Wis. 

377 353,  354,  356,  363 

Sepp  V.  McCann,  47  Minn.  364- .   112 

Sergent   v.    Salmond,    27    Me. 

539.   .   .  . 160 

Sesnon  v    Lindeberg,   66  Wash. 

1 30 

Sevier  v.  Roddie,  51  Mo.  580...  187 
Seward  v.  Jackson,  8  Cow.    (N. 

Y.)    406.  . 160 

Sext  V.  Geise,  80  Ga.  698.  ...391,  393 
Sexton  V.  Sexton,  35  Ind.  88. .  .  .  211 
Seymour  v.  Mickey,  15  Ohio  St. 

515 347 


538 


Table  of  Cases. 


isec 

Shaaler  v.  Bushong,  105  Pa.  St. 

514.  .  .  . 379 

Shadburne  v.  Daly,  76  Cal.  355.  371 
Shane  v.  Francis,  30  Ind.  92...       6 

Sharp  V.  Bedell,  10  111.  88 225 

Sharp  V.  Miller,  57  Cal.  415 224 

Sharon  v.  Sharon,  84  Cal.  433..  224 
Shaw  V.  Church,  39  Pa.  St.  226-  •  122 
Sheeby  v.  Mandeville,  6  Cranch 

(U.   S.)    253.   .   . 295 

Sheffield    v.     Whitfield,     6     Ga. 

App.  762   4,  348,  349 

Sheid  V.  Leibshultz,  51  Ind.  38.  53 
Shelton    v.    Cureton,    3    McCord 

L.  (S.  C.)   412  257 

Shepard    v.     Pebbles,    38     Wis. 

373 65,  265 

Shepard  v.  Shears,  35  Tex.  763.  359 
Sheppard  v.   Daniel  Miller  Co., 

7  Ga.  App.  760 348,  349 

Sheppard  v.  Newton,  139  N.  C. 

533   386 

Sheppherd    v.    May,    115    U.    S. 

505.  ... 13,  20,     21 

Sherman   v.  Mulloy    (Mass.)    54 

N.  E.  340.  .  .  .    354 

Sherman    v.    Pedick,    35     App. 

Div.   (N.  Y.)   15    360 

Sherman  v.  State,  4  Kan.  570..  27 
Sherman's  Admr.  v.  Shaver,  75 

Va.  1.  .  .  . 2 

Shickle,  etc..  Iron  Co.  v.  Water 

Works  Co.,  83  Iowa  396.   356 

Shields  v.  Smith,  78  Ind.  425...  411 

412 
Shields  v.  Smith,  8  Bush  (Ky.) 

601 246 

Shed  V.  Pierce,  17  Mass.  628.  ...  120 
Sherraden    v.    Parker,    24    Iowa 

28 131 

Sherrell  v.  Goodrum,  3  Humph. 

(Tenn.)    419    328 

Sherrod  v.  Rhodes,  5  Ala.  683..  206 
Sherrod  v.  Woodward,  4  Dev.  L. 

(N.  C.)    368.  .  .    192 

Sherwood  v.  Hill.  25  Mo.  391..   256 


SEa 
Sherwood  v.  Stone,  14  N.  Y.  267  394 
Shinier    v.    Higlitshue,    7    Blackf, 

(Ind.)    238 228 

Shine  v.  Bank,  70  Mo.  524... 66,  356 
Shipp    V.    Suggett,    9    B.     Mon 

(Ky.)   5,  8.  .    110 

Shoemaker  v.  Benedict,  11  N.  Y. 

176 90 

Shollenberger's  Appeal,   21   Pa. 

St.  337.  .  . 264 

Sliore    V.    Lawrence,    68    W.    Va. 

220,  69  S.  E.  791   34g 

Shore  v.  Wilson,  9  CI.  &  F.  352.  347 
Shortredge  v.  Check,  1  A.  &  E. 

57  ... 37 

ShowUes    V.    Freeman,    81    Mo. 

540 4     74 

Shreffer  v.  Nadelhoffer,  133  111. 

536 67 

Shroyer   v.   Richmond,   16   Ohio 

St.  455 59,  60,  266 

Shuer  v.  Hummel    (Neb.   1901), 

95  N.  W.  350 113 

Shufeldt  V.  Smith,  139  Mo.  267.  387 
Shufelt  V.  Moore,  93  Mich.  564  203 
S|hupe    v.    Gallbreathe,    32    Pa. 

St.  19  .  .  .   341 

Shute    V.    Taylor,    61    N.    J.    L. 

256 170,  171 

Sigourney    v.    Drury,    14    Pick. 

(Mass.)  387 371 

Sigourney   v.    Waddle,   9    Paige 

(N.  Y.)  381 27 

Sigourney  v.  Wetherell,  6  Mete. 

(Mass.)   553 118 

Silvers  v.  State,  59  N.  J.  L.  428.  431 
Silvester,  In  re  (1895),  1  Ch. 

573 368 

Silvey  v.  Dowell,  53  111.  260...   208 
Simmons  v.  Guise,  46  Ga.  473.-    122 
Simmons  National  Bank  v.  Dil- 
ley    Foundry    Co.,    93     Ark. 

368 .28,     30 

Simms  v.  Barefoots  Exrs.,  3  N. 
C.  402 32 


Table  of  Cases. 


539 


Sec. 
Simonsin    v.    Grant,    36     Minn. 

439.  ...    100,  103,  138 

Simpson   v.    Bovard,   74   Pa.    St. 

351 52 

Simpson  v.  Carr,  25  Ky.  Law- 
Rep.  849 381,  392 

Simpson  v.  Cook,  1  Bing.  452-.  84 
Simpson    v.     Griffin,    9     Johns. 

(N.  Y.)    131.  .  .    183 

Simpson  v.  Nance,  1  Spears  (S. 

C.)  4.  .  .  . 382 

Simpson  v.  Robert,  35  Ga.  180-  .   415 

416 
Sims  V.  Lively,  14  B.  Mon.  (Ky.) 

433.  ...   246 

Sinclair  v.  Redington,  56  N.  H. 

146.   .   .   .    198 

Singer   Mfg.   Co.    v.   Armstrong, 

7  Kan.  App.  314.  . 72 

Singer  Mfg.  Co.  v.  Bennett,  28 

W.  Va.    16    .61,  165 

Singer  Mfg.   Co.   v.   Bozette,   74 

Ark.  600 72 

Singer  Mfg.  Co.  v.  Freerks,  12 

S.  D.  595 45,     49 

Singer  Mfg.  Co  v.  Reynolds,  168 

Mass.  588.  ... 72 

Sizer  v.  Ray,  87  N,  Y.  220 20 

Sjoli   V.  Hogenson    (N.  D.   1909), 

122  N.  W.   1008   243 

Skillett  V.  Fletcher,  L.  R.  2  C.  P. 

469. 79 

Skillin    V.    Merrill,     16     Mass. 

20 194a 

Skinner    v.    Hill,    32    Mo.    App. 

409 20,     21 

Slagle  V.  Poro,  41  Ohio  St.  603.  122 
Slaughter  v.  Moore,  17  Tex.  Civ. 

App.  233 362,  372 

Sloan  V.  Gibbes,  56  S.  C.  480 16 

Sloo  V.  Pool,  15  111.  47 196,  200 

Slothoff  V.  Dunhan,  19  N.  J.  L 

181.  .  .  . 196 

Smair  v.  Schmitter,  38  Mo.  478  122 
Small  V.  Currie,  2  Drew  102...     32 


Sec. 
Small  V.  Currie,  5  De  G.  M.  &  G. 

141 100 

Small  Co.  V.  Claxton,  1  Ga.  App. 

83 3a,  35,     67 

Smalling  v.  King,  5  Lea  (Tenn.) 

585   329 

Smart  v.  Cason,  50  111.  195 437 

Smart  v.  Panther,  42  Tex.  Civ. 

App.  262 .196 

Smart  V.  Smart,  97  N.  Y.  559...  397 
Smead  v.  Railroad  Co.,  11  Ind. 

104.  ...   31 

Smith  V.  Berry,  3  Ohio  33.  . 207 

Smith  V.  Bowers,  2  Neb.  (Unoff.) 

611 238 

Smith  Bowman,  32  Utah  33 66 

Smith  V.  Carr,  128  N.  C.  150.-  . .  3 
Smith  V.  Clopton,  48  Miss.  66..  170 
Smith  V.  Commonwealth,  91  Ky. 

588 ' 431 

Smith  V.  Coon,  22  La.  Ann.  445.  90 
Smith  V.  Crocker,  5  Mass.  538.  56 
Smith   V.   Crouse,   24  Barb.    (N 

Y.)  433 .'225 

Smith   V.   Dana,   6   Hill    (N.   Y.) 

543 348,  355 

Smith  V.  Delaney,  64  Conn.  264.  382 
Smith   V.   Dickinson,   6   Humph. 

(Tenn.)    261 357 

Smith  V.  Felton,  43  N.  Y.  419. . .  144 
Smith  V.   Finch,  2   Scam.    (111.) 

321 390 

Smith  V.  Freyler,  4  Mont.  489  •  •  146 
Smith  V.  Harbin,  124  Ind.  434-.  193 
Smith  V.  Huesman,  30  Ohio  St. 

662 225 

Smith  V.  Hyde,  19  Vt.  54... 376 

Smith  V.  Ide,  3  Vt.  290 349 

Smith  V.  Jewett,  40  N.  H.  513. . .  253 
Smith  V.  Joslyn,  40  Ohio  St.  409  140 
Smith  V.  Kitchens,  5  Ga.  158...  424 
Smith  V.  Lay  wood,  5  Me.  504...  382 
Smith  V.  Lockwood,  34  Wis.  77.  77 
Smith  V.  Mason,  44  Neb.  610...   195 

196 


540 


Table  of  Cases. 


Sec. 
Smith  V.  Mayo,  1  Allen  (Mass.) 

160 386 

Smith    V.    Molleson,    148    N.    Y. 

241 112,  356 

Smith    V.    Montgomery,    3    Tex. 

203.   .   .   . 84 

Smith  V.  Old  Dominion  Building 

&  Loan  Asso.,  119  N.  C.  257.  .  139 
Smith  V.  Patton,  131  N.  C.  396..   301 

329 
Smith  V.  Peoria  Co.,  59  111.  412  50 
Smith  V.  Pitts  (Ala.  1910),  52  So. 

402   183 

Smith  V.  Rhode,  68  Ohio  St.  500  253 

Smith  V.  Rice,  27  Mo.  505 64 

Smith  V.  Roehrig,  90  Neb.  262..  171 
Smith  V.  Ruby,  6  Heisk.  (Tenn.) 

546    239,  240 

Smith  V.  Rumsey,  33  Mich.  183-  •    163 

202 

Smith  V.  Sawyer,  5  Me.  504 178 

Smith    V.    Schneider,    84    N.    Y. 

Supp.    238    377 

Smith  V.  Sheldon,  35  Mich.  42..  2 
20,   21,   100,  171 

Smith  V.  Smith,  IC  N.  C.  173 3 

Smith  V.  Smithson,  48  Ark.  261  65 
Smith  V.  Staples,  40  Conn.  90-  .  .194a 
Smith  V.  Stephen,  53  Ga.  300..  75 
Smith  V.  United  States,  2  Wall. 

(U.  S.)   219 55,  66,  80,  102,  104 

Smith    V.    Weston,    88    Hun    (N. 

Y.)  25   26 

Smith  V.  Whitten,  117  N.  C.  389  239 
Smith  V.  Winters,  4  Mees.  &  W. 

454    35,   89,  117 

Smythe  v.  United  States,  188  U. 

S.    156    316,  319 

Snell  V.  State,  43  Ind.  359 325 

Snell  V.  Warner,  63  111.  176....  177 
Snider  v.  Greathouse,  16  Ark.  72  187 
Snively  v.  Fisher,  21  Pa.  Super. 

Ct.  56    114 

Snoqualmi  Realty  v.  Moynihan, 

179   Mo.   629    112c 

Snow  V.  Brown,  100  Ga.  117 203 


Sec. 
Snow  Storm  Mining  Co.  v.  John- 
son, 186  Fed.  745    398 

Snowden,  Ex  parte,  17  Ch.  Div. 

44   211 

Snydaeker  v.  Suan  Land  &  Cat- 
tle Co.,  154  111.  220 192 

Snyder  v.  Blair,  33  N.  J.  L.  208  186 
Snyder  v  Gross  (Neb.),  95  N.  W. 

636  334 

Snyder  v.  Leibengood,  4  Pa.  St. 

305  341 

Snyder's   Estate,   7   Kulp.    (Pa.) 

409   341 

Solenberger  v.  Strickler's  Adm'r 

110  Va.  273,  65  S.  E.  566  ....  14 
Sollee  V.   Mengy,  Bailey  L.    (S. 

C.)   620   371 

Solomon  v.  Reese,  34  Cal.  36..  139 
Somers  v.  Pumphrey,  24  Ind.  231  25 
Sooy  V.  State,  39  N.  J.  L.  135-.    126 

140 
Sooy  V.  State,  38  N.  J.  L.  324.  .  .  .  309 
Soule  V.  United  States,  100  U.  S. 

8  337 

South  V.  Maryland,  18  How.  (U. 

G.)    396   32e 

South  Berwick  v.  Hunter,  53  Me. 

89   56 

Southerland  v.  Coster,  55  Mich. 

151   398 

Southern  Cotton  Oil  Co.  v.  Bass, 

126  Ala.  343    78 

South     Omaha     Nat.     Bank     v. 

Wright,  45  Neb.  23 151 

Southwick    Bank   v.    Grosse,    35 

Pa.  St.  82  108 

Soverhill    v.    Suydam,    59    N.    Y. 

140  252 

Spann  v.  Cochran,  63  Tex.  240  377 
392,  393,  396 
Sparks  v.  Bank,  3  Del.  Ch.  300  305 
Spaulding  v.  Putnam,  128  Mass. 

363   347 

Spear  v.  Farmers  &  Mechanics' 

Bank,    156   111.   555    374,386 

Speed  V.  Willow  Springs  Distil- 
ling Co.,  140  Ky.  269  100 


Table  of  Cases. 


541 


Sec. 
■Spencer   v.   Alki    Point   Transp. 

Co.,  53  Wash.  77,  101  Pac.  509  28 
Spencer  v.  Houghton,  68  Cal.  82  262 
Sperb  V.  McCoun,  110  N.  Y.  605  249 

267 

Spicer  v.  State,  9  Ga.  49    32 

Spillman  v.   Smith,   15   B.   Mon. 

(Ky.)  134  177 

Sprigg  V.  Bank,  10  Pet.   (U.  S.) 

257  58 

Sponhaur    v.     Malloy,    21     Ind. 

App.  287   177,  190,  191 

Spring  Litho.  Co.  v.  Wavey,  97 

Cal.    30    362 

Springs  v.  McCoy,  122  N.  C.  628  26 
Spurgeon  v.  Smith,  114  Ind.  453  224 
Stacy  V.  Rose   (Ch.  App.  1900), 

58  S.  W.  1087    3 

St.    Albans   Bank   v.    Dillon,    30 

Vt.  122    376 

Stafford  v.  Bank,  132  Mass.  315  153 
Stahl  V.  Berger,  10   Serg.  &  R. 

170  56 

Stallengs  v.  Johnson,  27  Ga.  564  46 
Standard  Brewery  Co.  v.  Kelly, 

66  III.  App.  267   30 

Standard  Oil  Co.  v.  Arnestad,  6 

N.  D.  255  75,     84 

Standard     Oil      Co.     v.     Hoese 

57  Neb.  665,  78  N.  W.  292  ....  348 
Standard   Supply   Co.   v.   Finch, 

154  N.  C.  456    341 

Standley  v.  Adams,  36  Miss.  434  342 
Stanford  v.  Coram,  26  Mont.  285, 

67  Pac.  1005   361 

Stamford  Bank  v.   Benedict,   15 

Conn.  437 97 

Stark  V.  Fuller,  42  Pa.  St.  320 .  .  150 
Starr  v.  Commonwealth,  7  Dana 

(Ky.)    243    414 

Starr  v.  Milliken,  180  111  458..  356 
State  V.  Adams,  3  Head  (Tenn.) 

260  429 

State      V.      Allen,      2      Humph. 

(Tenn.)    258    429,  430 

State  V.  Alsup,  91  Mo.  172 301 

State  V.  Anderson,  119  Iowa  711  421 


Sec. 
State  V.   Anthony,   30   Mo.   App. 

638    246,  253 

State  V.  Atherton,  40  Mo.  209..  287 
State  V.  Atkins,  53  Ark.  303 . .  157 
State  V.  Aubrey,  43  La.  Ann.  188  423 

State  V.  Austin,  35  Minn.  51 54 

State  V.  Babb,  39  Mo.  App.  543.  .  427 
State  V.  Bagby,  160  Ind.  669,  67 

N.  E.  519   301 

State  V.  Baker,  64  Mo.  167 315 

State  V.  Baker,  47  Miss.  88 320 

State  V.  Baldwin,  78  Iowa  737.  .  423 
State  V.  Barger,  92  Mo.  App.  631  259 
State  V.  Barnes,  52  W.  Va.  85.  .   323 

325 

State  V.  Barrett,  121  Ind.  92 247 

State  V.  Bateman,  102  N.  C.  52  310 

State  V.  Bebee,  87  Iowa  636 418 

State  V.  Becker,  80  Wis.  313 423 

State  V.  Berger,  92  Mo.  App.  631  264 

265 
State  V.  Berning,  74  Mo.  87.. 9,  203 

247 

State  V.  Berry,  34  Ga.  546 430 

State  V.  Berry,   50  Ind.  496 305 

State  V.  Blake,  2  Ohio  St.  147  ••  173 
State    V.    Blakemore,    7    Heisk. 

(Tenn.)   638   276,  318 

State  V.  Bliss,  19  Ind.  App.  662. .  334 
S^ate  V.  Buffalo,  2  Hill   (N.  Y.) 

434    61 

State  V.  Bobleter,  83  Minn.  479, 

86   N.  W.  461    302 

State  V.  Boom,  44  Mo.  254 84 

State  V.  Bordelon,  111  La.  105-.  434 
State  V    Bowgard,  89  Minn.  426  434 

State  V.  Bower,  72  Mo.  387 311 

State  V.  Bowman,  10  Ohio  445.  .     54 

State  V.  Brantley,  27  Ala.  44 32 

State  V.  Brooks,  48  La.  Ann.  855  431 

State  V.  Brown,  80  Ind.  425 253 

State  V.  Brown,  11  Ired.  (N.  C.) 

141   324 

State  V.  Buffum,  27  N.  H.  267-.  431 
State  V.  Castleton,  1  Gill   (Md.) 

249   313 

State  V.  Carroll,  9  Mo.  App.  275  324 


542 


Table  of  Cases. 


Sec. 

State  V.  Chick,  146  Mo.  645.  .102,  106 

State  V.  Clark,  15  Ohio  595 431 

State  V.  Cobb,  44  Mo.  App.  375  431 

State  V.  Cone,  32  Ga.  663 428 

State  V.  Conover,  28  N.  J.  L.  224  324 

State  V.  Corey,  16  Ohio  St.  17..  310 

State  V.  Cornig,  42  La.  Ann.  416  436 

State  V.  Crooks,  7  Ohio  573  308 

State    V.    Cunningham,    10    La. 

Ann.   393    414 

State  V.  Davidson,  20  Mo.  212..  '119 

420,  431 

State  V.  Davis,  88  Mo.  585   325 

State  V.  Dayton,  101  Md.  598 66 

SLate  V.  Denny,  10  La.  Ann.  335  436 

State  V.  Dent,  121  Mo.  162 331 

State  V.  Doane,  30  La.  Ann.  1194  431 

State  V.  Dodd,  81  111.  162 333 

State  V.  Drake,  52  Ark.  350....  243 
State  V.  Dreiker  (Mo.  App.),  74 

S.  W.  15   323 

State  V.  Dunn,  11  La.  Ann.  550  301 
State    V.    Edwards.    4    Humph. 

(Tenn.)    226    428 

State  ex   rel.  Jacobs  v.  Elliott, 

157   Mo.   609    246 

State  V.  Enslow,  41  W.  Va.  744  333 

State  V.  Evans,  32  Tex.  200   67 

State  V.  Eyermann,  172  Mo.  294  433 
State  V.  Farley,  8  Blackf.  (Ind.) 

229    420 

State  V.  Findley,  101  Mo.  368.27,  55 

State  V.  Fitzpatrick,  64  Mo.  185  324 

State  V.  Flinn,  77  Ala.  100 33 

State  V.  Flinn,  3  Blackf.   (Ind.) 

72   334 

State  V.  Flynn,  161  Ind.  554..  329 

333 

State  V.  Flynn,  157  Ind.  52 311 

State  V.  French,  60  Conn.  478 . .  256 

State  V    Ii\iller,  128  Ala.  45 423 

State  V.  Funk,  20  N.  D.  145 426 

State  V.  Gambs,  68  Mo.  289 6 

State  V.  Gibson,  21  Ark.  146 271 

State  V.  Gideon,  158  Mo.  327-329,  333 

State  V.  Glenn,  40  Ark.  332 431 


Sec 
State  V.  Gregory,  119  Ind.  503..   251 

256 
State  V.  Hancock,  54  N.  J.  L.  393  431 
State  V.  Harper,  6  Ohio  St.  607.  .  316 
State  V.  Harrison,  99  Mo.  App. 

57,  72  S.  W.  469    311 

State  V.  Harvey,  57  Miss.  863 .  .  309 
State  v.  Haskitt,  Riley   (S.  C), 

97  -^27 

State  V.  Hayes,  104  La.  461 434 

State  V.  Henderson,  142  Mo.  598  331 
State  V.  Hendricks,  88  Mo.  App. 

560   323 

State  V.  Hill,  47  Neb.  456   54 

State  V.  Himill,  6  La.  Ann.  257.  .  434 
State  V.  Hindman,  159  Ind.  586  433 
State   V.    Holman,   96    Mo.   App. 

193   72 

State    V.    Holman,    93   Mo.   App. 

611   247 

State  V.  Holmes,  23  Iowa  458  •.  .  424 
State  V.  Horn,  70  Mo.  466.  .  .414,  429 

State  V.  Hostes,  61  Mo.  544 265 

State  V.  Houston,  78  Ala.  576,  83 

Ala.  361   316 

State  V.  Houston,  74  N.  C.  174.  .  423 
State  V.  Howe,  25  Ohio  St.  597. .   305- 

State  V.  Hughes,  15  Ind.  104 263 

State  V.  Hull,  53  Miss.  626. 260,  265 
State  V.  Ireland,  68  N.  C.  300.  •  .  325 
State  V.  Jennings,  4  Ohio  St.  418  324 
State     V.     Johnson,     7     Blackf. 

(Ind.)    520    242,  258 

State  V.  Johnson,  55  Mo.  80 310 

State  V.  Jones,  29  Ark.  127 424 

State  V.  Jones,  89  Mo.  470 69,  260 

State  V.  Kennedy,  163  Mo.  510..  247 
State  V.  Kintzebone,  78  Me.  99  305 
State  V.  Knotts,  10  Rich  L.    (S. 

C.)   543   371 

State  V.  Kraner,  50  Iowa  582..   436 

State  V.  Lake,  30  S.  C.  43 331 

State  V.  Lazarre,  12  La.  Ann.  166  414 
State  V.  Lanier,  31  La.  Ann.  423  316 
State    V.    Lingenfelt,    109    N.    C. 

775    414,  421 

State  V.  Lyons,  7  La  Ann.  540-  .    419' 


Table  of  Cases. 


543 


Btate  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

App.), 
State  V. 
State  V. 

428  .. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

State  V. 
State  V. 
State  V. 

State  V. 
State  V. 
State  V. 
State  V. 
Stat©  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

State  V. 

257  .. 
State  V. 
State  V. 
State  V. 

N.  W. 


Sec. 

Mackey,  55  Mo.  51. 423,  431 

Mann,  21  Wis.  684 423 

Martin,  20  Ark.   629...  321 

Martin,  50  La.  Ann.  24-  ■  425 

Mathis,  3  Ark.  84 431 

McCormack,  50  Mo.  568  328 
McDannel    (Tenn.   Ch. 

59  S.  W.  451  308,  310 

McGuire,  16  R.  I.  519..  433 
McMichael,  50  La.  Ann. 

421 

McNeal,  18  N.  J.  L.  33  428 

Meier,  96  Iowa  375 422 

Merrihew,  47  Iowa  112  426 

Meyer,  2  Mo.  App.  413  ■  .  336 

Miller,  96  Iowa  375-.  .  420 

Miller,  109  La.  27 421 

Mitchell,  132  Ind.  461.-  260 

Montague,  34  Fla.  32..  337 

Moore,  74  Mo.  413.  -316,  317 

Moore,  19  Mo.   366 324 

Moore,  56  Neb.  82.-301,  311 

Morgan,  59  Miss.  349 . .  328 

Moses,  18  S.  C.  366 333 

Murmann,  124  Mo.  502  421 
431 

Nevin,  19  Nev.  162 

Nichols,  39  Miss.  318. 
Nutter,  44  W.  Va.  385 


O'Blemis,  21  Mo.  272 
Osborn, 155  Ind.  385.. 
Osier,  48  Iowa  343. . 

Pack,  53  Me.  284 

Page,  62  Ind.  209 

Pare,  28  Mo.  App.  512 
Parker,  72  Ala.  181 . . 
Paxton,  65  Neb.  110- 
Peck,  53  Me.  284... 
Pepper,  31  Ind.  76-   50, 

56,  315,  362 
Peterman,  66  Mo.  App. 

261 

Peterson,  142  Mo.  526..   325 
Peyton,  32  Mo.  App.  522     54 
Porter,  69  Neb.  203,  95 
769   301,  304 


316 

325 

65 

66 

420 

431 

424 

54 

262 

242 

2 

110 

51 

51 


Sec. 
State  V    Potter,  63  Mo.  212.. 50,     51 

State  V.  Powell,  "7  Mo.  395 317 

State  V.  Powell,  44  Mo.  436 325 

State  V.  Pratt,  148  Mo.  402 431 

State  V.  Purdy,  67  Mo.  89 253 

State  V.  Rhoades,  6  Nev.  352 304 

State  V.  Roberts,  12  N.  J.  L.  114  328 

State  V.  Rollins,  52  Ind.  108 436 

State  V.  Rousseau,  39  Tex.  614  421 

State  V.  Rucker,  59  Mo.  17 249 

State  V.  Ryland,  163  Mo.   280-.   301 

304,  336 
State  V.  Sandy,  138  Iowa  580..  413 
State  V.  Sappington,  67  Mo.  529  308 
State   V.    Satterwhite,    20    S.   C. 

536  24 

State  V.  Saunders,  8  N.  J.  L.  177  434 

436 
State  V.  Scott,  12  Ind.  529. 253,  256 

258 
State  V.  Scott,  20  Iowa  63 .  .  414,  428 

429,  431 
State    V.    Schexneider,    45    La. 

Ann.    1445    422,  434 

State   V.    Shackleford,    56    Miss. 

648    260 

State   V.    Shafer,    152   Mo.   App. 

538    66 

State  V.    Shelby,    75    Mo.    482 .  .   242 

258 
State  V.  Slauter,  80  Ind.  597- 
State  V.  Slevin,  93  Mo.  253 
State  V.  Sloan,  20  Ohio  327- 
State  V.  Smith,  68  Mo.  641 
State  V.  Smith,  26  Mo.  226 
State  V.  Smith,  66  N.  C.  620 
State  V.  Sooy,  39  N.  J.  L.  539 


65,  265 
264 
329 
253 
337 
431 
307 
337 
State  V.  Spear,  54  Vt.  503.. 426,  427 
State    V.    Stephenson,    2    Swan 

(Tenn.)    308    423 

State  V.  Stewart,  74  Iowa  336..  431 
State  V.  Stommel,  89  Iowa  67..  422 
State  V.  Stout,  26  Ind.  App.  446  301 

State  V.  Stroop,  22  Ark.  328 248 

State  V.  Sullivan,  45  Minn.  309.  .  305 
State  V.  Supervisor.  59  111.  412- .     51 


544 


Table  of  Cases. 


Sec. 
State  V.  Sureties,  4  Wyo.  347  ■•  413 
State  V.  Swinney,  60  Miss.  39-  •  .  227 
State  V.  Taylor,  100  Mo.  App.  481  253 
State  V.  Trahan,  31  La.  Ann.  715  421 
State  V.  Traphagen,  45  N.  J.  L. 

134    428,  434 

State  V.  Tubbs,  37  N.  Y.  586.  -  .  .  428 
State  V.  Vion,  12  La.  Ann.  688-  .  413 
State  V.  Warren,  17  Tex.  283-.  433 
State   V.    Warrick,    3    Ind.    App. 

508    436 

State  V.  Watson,  38  Ark.  96 332 

State  V.  Weeks,  92  Mo.  App.  359  301 
State  V.  Welbes,  12  S.  D.  339.  .51,  103 

State  V.  Wells,  8  Nev.  105 305 

State  V.  Western  Surety  Co.,  26 

S.  D.  171   405 

State     V.     Whitson,     8     Blackf. 

(Ind.)    178    423 

State  V.  Williams,  84  S.  C.  21-  •  •  423 
State  V.   Wilmer,   65   Md.    178..   253 

255 
State    V.    Wilson,    14    La.    Ann. 

450   431 

State  V.  Winninger,  81  Ind.  51..   431 

State  V.  Wyant,  67  Ind.  25 23 

State  V.   Yates    (Mo.   1910),   132 

S.  W.  672   67 

State  V.  Young,  23  Minn.  551..  48 
49,  51,  56,  310 
State  V.  Zimmerman,  112  Iowa 

5    421,  423 

State  Bank  v.  Brennan,  7  Colo. 

App.  427 325 

State  Bank  v.   Burton   Gardner 

Co.,  14  Utah  420   3,  350 

State  Bank  v.  Chetwood,  8  N.  J. 

L.    1    292 

State  Bank  v.  Evans,  15  N.  J.  L. 

155   50 

State  Bank  v.  Smith,  155  N.  Y. 

185   137 

State  Nat.   Bank  v.   Hayden,   14 

Neb.  480  357 

Stayner  v.  Joice,  82  Ind.  35  •  •  .  105 
Steadham    v.    Guthrie,    4    Met. 

(Ky.)    147    45 


Sec. 
Stebbins  v.  Mitchell,  82  Ky.  535  195 
Stebbins  v.  Scott,  172  Mass.  355  377 

384 
Steckel  v.  Steckel,  28  Pa.  St.  233  178 
Steel    V.    Auditor    General,    111 

Mich.  381  34 

Steel  V.  Dixon,  17  Ch.  D.  825..  205 
Steele  v.  Johnson,  96  Mo.  App. 

147  113,  114 

Steele  v.  Mealing,  24  Ala.  285..   208 

Steele  v.  Souder,  20  Kan.  39 90 

Steelman  v.  Mattix,  38  N.  J.  L. 

247   411,  412,  430 

Steinberg  v.  State,  42  Ark.  127.  .  421 
Steiner  v.  Steiner  Land  &  Lum- 
ber Co.,  120  Ala.  120 30 

Steingrebe   v.    Beveling   Co.,    83 

111.  App.  587   154 

Stelle  V.  Lovejoy,  125  111.  352..  224 
Stelle's  Case,  34  N.  J.  Eq.  199-  .  278 
Stemmerman    v.    Lillianthal,    54 

S.  C.  440 393 

Stephens  v.  Graham,  7  Serg.  & 

R.    (Pa.)    505    102,  105 

Stephenson   v.    Elliott,    53    Kan. 

550   11 

Stern  v.  People,  102  111.  340,  540  314 

315 
Stern  v.  People,  96  111.  475. 69,  301 
Sternbach  v.  Friedman,  34  App. 

Div.   (N.  Y.)   54    152 

Sterns  v.   Marks,   35    Barb.    (N. 

Y.)    565    365,  366 

Stetson  v.  Bank,  12  Ohio  St.  577  77 
Stevens  v.  Bigelow,  12  Mass.  437  411 
Stevens  v.  Cooper,  1  Johns.  Ch. 

(N.  Y.)  430   152 

Steele  v.  Graves,  68  Ala.  17 257 

Stevens  v.  Gaylord,  11  Mass.  256  252 

Stevens  v.  Hay,  61  111.  399 416 

Stevens  v.  Lynch,  12  East  88..  35 

37,  89 
Stevens  v.  Oaks,  58  Mich.  343..  171 
Stevens  v.  Stevens,  3  Redf.  (N. 

Y.)  507  247 

Stevens  v.  Tucker,  89  Ind.  109. .   201 

209,  260 


Table  of  Cases. 


545 


Sec. 
Stevenson   v.   Palmer,  14   Colo. 

565  220 

Stewart  v.  Baehm,  2  Watts  (Pa.) 

356    92 

Stewart  v.  Campbell,  58  Me.  459  392 
Stewart  v.  Goulden,  52  Mich.  143  196 
Stewart  v.  Johnston,  87  Ga.  97  260 

275 
Stewart  v.  McGuire,  1  Cow.   (N. 

Y.)   99   411 

Stewart  v.  Parker,  55  Ga.  656  ••   171 

Stewart  v.  Sholl,  99  Ga.  534 331 

Stewart  Gwynne  &  Co.  v.  Sharp 

County  Bank,  71  Ark.  585-...   348 

Stifer  V.  State,  114  Ind.  291 325 

Stillman  v.  Dresser,  22  R.  I.  389  381 
Stillman  v.  Wickham,  106  Iowa 

597  100 

Stillwell  V.  Aaron,  69  Mo.  539  •■   115 

171 
Stillwell    V.    American    Surety 

Co.,  70  Ark.  512   67a,  126 

Stillwell  V.  How,  46  Mo.  589 210 

Stinson  v.  Brennan,  Cheves   (S. 

C.)   15   188 

St.  John's  College  v.  Aetna  In- 
demnity Co.,  201  N.  Y.  335  -  •  100 
112a,  112d,  ll2e 
St.  John's  College  v.  Aetna  In- 
demnity Co.,  135  App.  Dlv.  (N. 

Y.)    480 100,  112a,  112d.  112e 

St.  Louis  V.  Henning,  235  Mo.  44  423 
St.  Louis  V.  Von  Phul,  133  Mo. 

561   112 

St.     Louis     Brewing     Ass'n     v. 

Hayes,  38  C.  C.  A.  449 54 

Stockmeyer  v.  Oertling,  35  La. 

Ann.  467,  469    194a,  203 

Stockwell  V.  Robinson,  9  Houst. 

(Del.)   313    324 

Stoddard  v.   Hibbler,   156  Mich. 

335  112 

Stokes  V.  People,  63  111.  489 423 

Stolze  V.  United  States  Fidelity 

&    Guaranty    Co.    (Mo.    App. 

1910),  131  S.  W.  915 95 

35 


Sec. 
Stone  V.  Bicket,  31  Misc.  R.  (N. 

Y.)  183  149 

Stone  V.  Compton,   5   Bing.    (N. 

C.)   142   141 

Stone  V.  Hammell,  83  Cal.  547-.  180 
182,  190.  195 
Stone  V.  Rockefeller,  29  Ohio  St. 

625 359 

Stone  V.  Seymour,  15  Wend.  (N. 

Y.)  20   337 

Stone     V.     Walker,     13     Gray 

(Mass.)    612    399 

Stone  V.  White,  8  Gray  (Mass.) 

589  110 

Stoner  v.  Keith  County,  48  Neb. 

279    51,   55,  110 

Stoner  v.  Milliken,  85  111.  218..     57 

78,  315 
Stone  River  Nat.  Bank  v.  Wal- 
ter, 104  Tenn.  11  46 

Stork   V.   American   Surety  Co., 

109  La.  713    301,  336 

Storts  V.  George,  150  Mo.  1 152 

Stout    V.    Vause,    1    Rob.    (Va.) 

179   199 

Stovall  V.  Adair,  9  Okla.  620...  210 
Stovall  V.  Bank,  78  Va.  188.. 7,  194 

206 
Stovall  V.  Banks,  10  Wall.    (U. 

S.)    583    63,  65,  243,  252 

Stowall  V.  Raymond,  83  111.  120  347 
Stowell  V.  Grain,  184  Mass.  562  374 
St.    Paul    Title  &   Trust   Co.    v. 

Sabin,  112  Wis.  105 141 

Strain  v.  Babb,  30  S.  C.  342 333 

Strange  v.  Lee,  3  East  484 84 

Stratton  v.  City  Trust,  Safe  De- 
posit  &    Surety   Co.,   86   App. 

Div.   (N.  Y.)    551    271 

Stratton  v.  Hill,  134  Mass.  27..  392 
Straw  v.  Krouser,  114  Iowa  916  412 
Strawbridge  v.  Railroad  Co.,  14 

Md.   360    72,  285,  286 

Streeper  v.  Victor  Sewing  Mach. 

Co.,  112  U.  S.  676 66 

Strong  V.  Foster,  17  C.  B.  201 .  99,  170 


546 


Table  of  Cases. 


Sec. 
Strong  V.  Grannis,  26  Barb.  (N. 

Y.)    122    32,  136 

Strong  V.  Lyon,  63  N.  ¥.172 354 

Strong  V.  Taylor,  79  Ind.  208  •  •  193 
Stroud  V.  Thomas,  139  Cal.  274  36 
37,  39,  114 
Strouse  v.  Querns,  22  Pa.  Super. 

Ct.  6    365 

Stuart  V.  Lancaster,  84  Va.  772  122 
Studebaker  v.  Cody,  54  Ind.  586  349 

Stull  V.  Hance,  62  111.  52   224 

Stull  V.  Lee,  70  Iowa  31 74 

Stultz  V.  Zahn,  117  Ind.  227 224 

Sturtevant   v.    Randall,    53    Me. 

149   210 

Stuts  V.  Strayer,  60  Ohio  St.  284  101 
Sublett  V.  McKinney,  19  Tex.  438     14 

178 
Succession    of    Vorhis,    21    La. 

Ann.  659 90 

Sullivan  v.  Fried,  42  Mont.  335..  224 
Sullivan  v.  State,  121  Ind.  342  329 
Summerhill  v.  Tapp,  52  Ala.  227  171 
Summit    v.     Coletta     (N.    J.     L. 

1911),   78  Atl.   1047    224 

Summons  v.  Sharpe    (Ala.   1911), 

56    So.    849    224 

Sumner  v.  Tuck,  10  Mo.  App.  269  158 
Supervisors   v.   Bates,   17   N.  Y. 

242  311 

Supervisors   v.   Kaime,   39   Wis. 

468    317 

Suppler     V.     Herman,     16     Pa. 

Super.  Ct.  45 172 

Sutherland  v.  Carr,  85  N.  Y.  105  75 
Swan     V.      Nesmith,      7      Pick. 

(Mass.)    220    394 

Swank  v.  State,  3  Ohio  St.  429, 

433    423,  427 

Swarts  V.  Fourth  Nat.  Bank,  117 

Fed.  1  94 

Swartz  V.  Badon,  47  Iowa  188..  56 
Swasey   v.   Doyle,   88   Mo.   App. 

536    112a 

Sweeney  v.  Lustfield,  116  Mich. 

969 163 


Seo. 
Sweet    V.    McAlister,    4    Allen 

(Mass.)    354    210 

Sweetzer    v.    French,    2    Cush. 

(Mass.)  309  26 

Swift  V.  State,  63  Ind.  81  329 

Swift  V.  Trustees  of  Schools,  189 

111.  584    301,  317 

Swift  V.  Trustees  of  School,  91 

111.  App.   221    301 

Swift  V.  Tyson,  16  Pet.  1  39 

Swift   &    Co.    V.    Kortrecht,    112 

Fed.  709  151 

Swigart  v.  Genterf,  63  Neb.  157  374 
Swire  v.  Redman,  L.  R.  1  Q.  B. 

Div.   536    20,     21 

Swisher  v.  Deering,  104  111.  App. 

572    348 

Swisher  v.  McWhinney,  64  Ohio 

St.  343   261,  269 

Sylvester  v.  Downer,  20  Vt.  355  347 
Sylvester  v.  Downer,  18  Vt.  32  353 
Syracuse  v.  Roscoe,  66  Misc.  R. 

(N.  Y.)  317  93a 

T. 

Taft  V.  Gillord,  13  Met.  (Mass.) 

187  288 

Taintor  v  Taylor,  36  Conn.  242  429 
Talbot  V.  Gay,  18  Pick.   (Mass.) 

534    349 

Talbot    V.    Whipple,     14    Allen 

(Mass.)    177    295 

Talcott  V.  Rose  (Tex.  Civ.  App.), 

64  S.  W.  1009   238 

Talley  v.  State,  44- Tex.  Cr.  App. 

162   421 

Tally  V.  Ganahl,  151  Cal.  418- 1,  112d 
Talmadge  v.  Burlingham,  5  Pa. 

St.   21    5,     95 

Tapley  v.  Martin,  116  Mass.  275  288 
290,  291,  292,  293 

Tappan  v.  People,  67  111.  339 320 

Tarentum    Realty    Co.    v.    Mc- 

Clure,  230  Pa.  St.  266 69 

Tarnier  v.  Nance,  5  Ala.  718 ... .  226 
Tarr   v.   Ravenscroft,   12   Gratt. 

(Va.)    642    198 


Table  of  Cases. 


547 


Sec. 
Tate  V.  Holly  (Colo.  App.  1912), 

122  Pac.  58  26 

Tate  V.  James,  50  Vt.  124    321 

Tatum  V.  Brown,  23  Miss.  760..  347 
Tatum  V.  Morgan,  108  Ga.  336, 

33  S.  E.  940  363 

Taussig  V.   Reid,   145   111.   488..   351 
352,  353,  354,  356 
Taylor   v.    Bank,    11   App.    Cas. 

596   100 

Taylor  v.  Bank,  2  J.  J.  Marsh. 

(Ky.)    264    290 

Taylor  v.  Delbols,  4  Mason  131. .  255 
Taylor  v.  Farmer's  Bank,  87  Ky. 

398    151 

Taylor  v.  Hand,  7  How.  (U.  S.) 

581  60 

Taylor  v.  Johnson,  17  Ga.  521- •  321 
Taylor  v.  Lohman,  74  Ind.  418- .  140 
Taylor  v.  McCluney,  2  Houst.  38  355 

Taylor  v.  Parker,  43  Wis.  78 324 

Taylor  v.  Preston,  79  Pa.  St.  436  397 
Taylor  v.  Ross,  3  Yerg.  (Tenn.) 

330    349 

Taylor  v.  Simpkins,  38  Misc.  R. 

(N.  Y.)   246    361 

Taylor  v.  State,  73  Md.  208 280 

Taylor  v.  Sullivan,  45  Minn.  309  305 
Taylor  v.  Taintor,  16  Wall.   (U. 

S.)  366.  .412,  414,  421,  428,  429,  430 
Taylor   v.    Tolman   Co.,    47    111. 

App.   264    348 

Taylor  Town  v.  Morter,  37  Iowa 

550   316 

Teasley  &  Co.  v.  Ray,  9  Ga.  App. 

649  2 

Tebbetts  v.  Dowd,  23  Wend.  379  89 
Tebo  V.  Betancourt,  73  Miss.  868  222 
Tebry  v.  Swenson,  32  Kan.  224. .   174 

Temple  v.  Rush,  76  Conn.  41 374 

Templeton  v.   Shakley,   107   Pa. 

St.  370    131 

Ten    Eyck    v.    Brown,    3    Pin. 

(Wis.)  452  357 

Tenney     v.      Prince,     4      Pick. 

(Mass.)  385  341 


Sec. 
Territory  v.  Woodward,  15  N.  M. 

161    423 

Tessin  v.  Crowley,  17  Neb.  207.  27 
Tevis  V.  Randill,  6  Cal.  632....  336 
Tevis  V.  Savage,  130  Cal.  411..   374 

398 
Tharp  v.  Parker,  86  Ind.  102...  171 
Thayer    v.    Daniels,    110    Mass. 

345 192 

Thayer  v.  HoUis,  3  Met.  (Mass.) 

369.  .   .  . 243 

Thomas    v.    Bleakie,    136    Mass. 

52.  .  .  . 51 

Thomas'  v.  Burrus,  23  Miss.  550  60 
Thomas  v.  Carter,  63  Vt.  609- . .  187 
Thomas   v.   City   Nat.    Bank   of 

Hastings,  40  Neb.  501.   31 

Thomas    v.    Clarkston,    125    Ga. 

78 134 

Thomas  v.  Cleveland,  33  Mo.  126  137 
Thomas     v.     Cole,     10     Heisk. 

(Tenn.)  411 226 

Thomas  v.  Cook,  8  Barn.  &  C 

728 382 

Thomas  v.  Dodge,  8  Mich.  50..  390 
Thomas    v.    Hubbell,    15    N.    Y. 

405 194a 

Thomas  V.  Liebke,  81  Me.  675..  174 
Thomas    v.    Markman,    43    Neb. 

623 238 

Thomason  v.  Keeney,  8  Ga.  App. 

852.   .  .   .    144a 

Thompkins  v.  Hunter,  149  N.  Y. 

117.  .  .  .   189 

Thompson  v.  Armstrong,  Breese 

(111.)   53 359 

Thompson  v.  Arnett,  23  Ky.  Law 

Rep.  1082 222 

Thompson  v.  Broad,  30  111.  99. .  316 
Thompson   v.   Deimer,   16   App. 

Div.   (N.  Y.)   168 59,  272,  299 

Thompson   v.   Dekum,   32   Oreg. 

506 203,  209 

Thompson  v.  Glover,  78  Ky.  193  45 
Thompson  v.  Gray,  63  Me.  228.     41 


54'8 


Table  of  Cases. 


Sec. 
Thompson  v.  Lock,  3  M.  G.  &  S. 

540 294 

Thompson     v.     Lockwood,     15 

Johns.    (N.  Y.)   256 32,  136 

Thompson  v.  MacGregor,  81  N. 

Y.   592 273,  276 

Thompson  v.  Nowlin,  51  W.  Va. 

346 256 

Thompson  v.  Rush,  66  Neb.  758.  59 
Thompson  v.  State,  37  Miss.  518  305 
Thompson  v.   Taylor,   72  N.   Y. 

32 14,  183 

Thompson  v.  Thompson,  19  Me. 

224 35 

Thompson  v.  Thompson,  4  Ohio 

St.  333 12 

Thompson  v.  "Watson,  10  Yerg. 

362 146 

Thompson    v.    Way,    173    Mass. 

423 405 

Thompson  V.  Young,  2  Ohio  334.  72 
Thomssen  v.  Hall  County, 

63  Neb.  777,  89  N.  W.  389.  .317,  319 
Thornburg    v.    Allman,    8    Ind. 

App.   531 2 

Thornburgh  v.  Madren,  33  Iowa 

380 147 

Thornton   v.   Williams,   71   Ala. 

555 396,  397 

Thurber's  Estate,  Matter  of,  162 

N.  Y.  244   438 

Thurber's  Estate,  Matter  of,  43 

App.   Div.    (N.   Y.)    528 438 

Thurman  v.  Morgan,  79  Va.  367  272 
Tidball  v.  Young,  58  Neb.  261, 

78  N.  W.  507 242 

Tidioote  Savings  Bank  v.  Lib- 
bey,  101  Wis.  193.  . 82,  357 

Tieman  v.  Haw,  49  Iowa  312. . .  324 

425 
Tighe    V.   Morrison,    116    N.    Y. 

263 374,  382,  383,  386 

Tillson  V.  State,  29  Kan.  452...  54 
Tilton  V.  Cofield,  93  U.  S.  163..  217 
Timmons    v.    Butler-Stevens    & 


Sea 

Co.  (Ga.  S.  C.  1912),  74  S.  E. 

784.  .  .  ,   128,  146 

Tinker  v.  McCauley,  3  Mich.  188  357 
Title,  Guaranty  &  Surety  Co.  v. 

Baglin,  178  Fed.  682.  .. . .  .122.  141 

Title  Guaranty  &  Trust  Co.  v. 

Murphy,  52  Wash.  190 67 

Title  V.  Bennett,  94  Ga.  405 8 

Tobey  v.  Ellis,  114  Mass.  120..  116 
Tobias  V.  Rogers,  13  N.  Y.  59 . .  212 
Todd  V.  Maxfield,  3  Barn.  &  Cr. 

222.  ...   412 

Teles  V.  Adee,  84  N.  Y.  222 410 

4U 
Toleton  &  Stetson  Co.  v.  Rob- 
erts, 115  Iowa  474 126 

Tollison  V.  State,  139  Ala.  159..  423 
Tolman  v.  Griffin,  111  Mich.  301  362 
Tom  V.  Goodrich,  2  Johns.   (N. 

Y.)    213    11,   179,  199 

Tomlinson  v.  Simpson,  33  Minn. 

443 103 

Tompkins    v.    Woodyard,    5    W. 

Va.  216.  .  .  26 

Tootle  V.  Elgutter,  14  Neb.  160  356 
Torp  V.  Gulseth,  37  Minn.  135.  154 
Torrence  v.  Alexander,  85  N.  C. 

143 171 

Toucey  v.   Schell,   15  Misc.    (N. 

Y.)   350 203 

Toulinin  v.  Copland,  2  CI.  &  F. 

681.  ...   98 

Towle  V.  Bradley,  2  S.  Dak.  472.  27 
Towle  V.  Towle,  46  N.  H.  431...  252 
Town     of     Point     Pleasant     v. 

Greenlee,  63  W.  Va.  207 38 

Town    of    Whitestown    v.    Title 

Guaranty    &    Surety    Co.,    72 

Misc.  R.  (N.  Y.)  498 442,  443 

Towne  v.  Ammidown,  20   Pick. 

535 23,  249 

Townsend  v.  Everett,  4  Ala.  607  302 
Townsend   v.   Long,   77   Pa.   St. 

143 12 

Townsend   v.    Star   Wagon   Co., 

10  Neb.  615 108 


Table  of  Cases. 


549 


Sec. 
Townsend   v.    Sullivan,    3    Cal. 

App.  115 18,  174,  181 

Townsend   v.   White,    102    Iowa 

47 383 

Townsend  Nat.  Bank  v.  Jones, 

151  Mass.  454.  .  .  217 

Tracy  v.  Goodwin,  5  Allen  409.  321 

324 
Tradesmen's  Nat.  Bank  v.  Na- 
tional Surety  Co.,  54  App,  Div. 

(N.  Y.)    631 72 

Train    v.    Emerson    (Ga.    S.    C. 

1912),  74  S.  E.  241.   194 

Train  v.  Gold,  5  Pick.   (Mass.) 

380 341 

Trammell  v.  Swan,  25  Tex.  473.  126 
Trank  v.  Traylor,  130  Ind.  145..  152 
Travelers'  Ins.  Co.  v.  Mayo,  170 

111.  498.  .  .  .   124 

Travelers'  Ins.  Co.  v.  Stiles,  82 

App.  Div.   (N.  Y.)   441 72 

101,  297a 
Trenholm  v.  Kloepper,  88  Neb. 

236    374 

Trevert  v.  Henry,  14  Neb.  191.  178 
Treweek  v.  Howard,  105  Cal.  434  251 
Tripp  V.  Harris,  154  N.  C.  296..  174 
Troth  V.  Gaar  Scott  &  Co.  (Civ. 

App.  1910),  126  S.  W.  670....  117 
Trotter  v.  Strong,  63  111.  272. . .  95 
Trudeau   v.    Poutre,    165    Mass. 

81 385 

True  V.  Fuller,  21  Pick.  (Mass.) 

140 357 

Trumbull  Co.  v.  Horner,  17  Ohio 

407 61 

Trustees   v.   Gilliford,   139    Ind. 

524 362 

Trustees  v.  Sheik,  119  111.  579..  54 
Trustees  v.  Smith,  88  111.  181..  303 
Trustees    v.    Southard,    31    111. 

App.  359.  .  .  145 

Truston    v.    Prentiss,    1    Mich. 

193 185 

Trust  Safe  Deposit  &  Surety  Co. 

V.  Lee,  204  HI.  69 444 


Sec. 
Tucker  v.  Blandin,  48  Hun  (N. 

Y.)  439. 357 

Tucker  v.  People,  87  111.  76 258 

Tucker  v.  State,  72  Ind.  242 32 

Tucker  v.   Stewart,   147  Iowa  294  242 

243 
Tucker     v.     White,     5     Allen 

(Mass.),  333 218 

Tudor  V.  De  Long,  18  Mont.  499  189 
Tudor    V.    Goodloe,    1    B.    Mon 

(Ky.)   322 115 

Tully   V.    Lewitz,    50    Misc.    (N. 

Y.)  350.  ...   54 

Tumwater,  Town  of  v.  Hard,  28 

Wash.  684 309 

Tunbridge  v.  Smith,  48  Vt.  648.  337 
Turner     v.     Collin,     4     Heisk. 

(Tenn.)  89 325 

Turner    v.   Franklin,    10    Ariz. 

188 441 

Turner     v.     Hubbell,     2     Day 

(Conn.)    457 401 

Turner  v.  Killian,  12  Neb.  580..  324 
Turner  v.  Session,  137  Mass.  191  327 
Turner  v.  Teague,  73  Ala.  554..  338 
Turner  v.  Williams,  73  Me.  466.  375 
Turnson  v.  Cramer,  5  N,  J.  L. 

574 74 

Tuscumbia  v.  Rodes,  8  Ala.  206.  144 
Tussell  V.  Williams,  87  Mo.  App. 

518 374 

Tutt  V,  Thornton,  57  Tex.  35..   163 

178 
Tuttle  V.  Bartholomew,  12  Met. 

(Mass.)  452.  . 357 

Tuttle     V.     Binney,     12     Mete. 

(Mass.)    452 357 

Twiss  V.  Guaranty  Life  Assn., 

87  Iowa  733..  .  .   28,     38 

Twohy  V.  McMurran,  57  Minn. 

242 340 

Tyner  v.  Hamilton,  51  Ind.  250.  262 
Tyng  V.   American   Surety   Co., 

174  N.  Y.  166 222 

Tyng   V.   American   Surety  Co., 

69  App.  Div.   (N.  Y.)    137 222 


550 


Table  of  Cases. 


U.  Sec. 

Uhert  V.  Schonger,  144  App.  Div. 

(N.  Y.)   696   387 

Uhler  V.  Applegate,  26   Pa.   St. 

140.  .  .   .    114 

Uhler  V.  Bank,  64  Pa.  St.  406-.  341 
Ullman  Realty  Co.  v.  Hollander, 

66  Misc.  R.  (N.  Y.)  348...  101,  111 
Ulster  County  Sav.  Bank  v.  Os- 

trander,  163  N.  Y.  430. 70,     71 

Ulster  County  Sav.  Bank  v.  Os- 

trander,  15  App.  Div.   (N,  Y.) 

173 71 

Ulster  County   Savings  Inst.  v. 

Young,  161  N.  Y.  23. 67,     71 

Ulster     County     Sav.     Inst.     v. 

Young,   15   App.   Div.    (N.   Y.) 

181 71 

TJmbreit     v.     American     Bonding 

Co.,   144  Wis.  611    232,  233 

Underwood   v.   Hossack,  38  111. 

206.  .  .  . 41,  341 

Union  Bank  v.  Coster,  3  N.  Y. 

204.  ,  .   .    355 

Union     Bank     v.     Forrest,     3 

Cranch.   C.  C.   218 297 

Union  Bank  v.  Ridley,  1  H.  & 

G.  (Md.)  324.  .  .  72,  298 

Union  Bank  v.  Willis,   8  Mete. 

(Mass.)   504,  510.  .   86 

Union  Guaranty  &  Trust  Co.  v 

Robinson,  79  Fed.  420.   65 

Union  Mut.  Life  Co.  v.  Hanford, 

143  U.  S.  187.  . 11,12,     13 

Union  Town  v.  Smith,  39  Iowa 

9.     .  .  316 

Uniontown  Bank  v.  Mackey,  140 

U.  S.  220.  . 113 

Union    Trust   Co.     v.     McCrum, 

145  App.  Div.   (N.  Y.)   409....      36 

57,  122 
Union  Trust  Co.  v.  Motor  Co. 

117  Mich.  631,  76  N.  W.  112. .  .  361 
United  States  v.  Abell,  174  Fed. 

12    329 

United  States  v.  Adams,  24  Fed. 

348.  .  .  .    316 


Sec. 
United    States   v.    Allsburg,    4 

Wall.    (U.   S.)    186 1,     94 

United  States  v.  Arnold,  1  Gall. 

348 319 

United  States  v.  Averill,  130  U. 

S.  335 330 

United   States  v.   Blackland,   32 

Fed.  156 ..427,  430 

United   States  v.  Boyd,   15   Pet. 

(U.  S.)   187    .   ...260,  285,  302    314 
United  States  v.  Boyd  (U.  S.  C 

C),  118  Fed.  89 301 

United    States    v.    Bradley,    10 

Pet.  (U.  S.)  361.     59,  60,  309 

United  States  v.  Broadhead,  127 

U.  S.  112.  .  . 318 

United    States    v.    Cheesman,    3 

Saw.  424.  .  .    310,  337 

United  States  v.  Curtis,  100  U. 

S.  119 183,  319 

United    States    v.    Cushman,    2 

Sumner  (U.  S.  C.  C.)   434-...     68 
United     States     v.     Dashiel,     4 

Wall.    (U.    S.)    182 316 

United  States  v.  Dunbar,  83  Fed. 

151.  .  .   431 

United  States  v.  Faulkner,  144 

Ky.   629    301 

United  States  v.  Giles,  9  Cranch. 

(U.  S.)  212 276 

United    States    v.    Goldstein,    1 

Dill.  C.  C.  43.. 431 

United  States  v.  Hines,  3  Mac. 

A.  27   324 

United  States  v.  Hodge,  6  How. 

279.  .  .  116,  123 

United    States    v.     Hodson,    10 

Wall.   (U.  S.)   395.  . 59a 

United  States  v.  Freel,  186  U.  S- 

309.  .  . 113a 

United    States    v.    Kirkpatrick, 

9  Wheat.   (U.  S.)   720 313,  314 

United   States  v.  Lanchaster,  4 

Wash.  C.  C.  64.  .  .    418 

United  States  v.  Linn,  15  Pet. 

290 35,  44,  213 


Table  of  Cases. 


551 


Sec. 
United  States  v.  Maloney,  4  App. 

Dist.  C.  505    67 

United     States    v.     Marrin,     170 

Fed.  476   429 

United  States  v.  McGlashire,  66 

Fed.  537 434 

United   States   v.   Mclntyre    (U. 

S.  C.  C),  111  Fed.   590 100 

United  States  v.  McMullen,  222 

U.  S.  460 113a 

United     States    v.     Morgan,     11 

How.    (U.    S.)    160 316 

United     States     v.     Nicoll,     12 

Wheat.  (U.  S.)  505. 70 

United    States    v.    Poulson,    30 

Fed.  231.  .  . 319 

United     States    v.     Prescott,     3 

How.   (U.  S.)   578.  .    316 

United     States     v.     Preston,     4 

Wash.  C.  C.  446.   432 

United  States  v.  Price,  9  How. 

(U.  S.)  83 86 

United  States  v.  Rogers,  28  Fed. 

607 309 

United    States    v.    Rundle,    107 

Fed.  227 65 

United  States  v.  Ryder,  110  U 

S.  729.  . ..338,  413,  415,  432 

United    States    v.    Simmons,    47 

Fed.   375 415,  416 

United   States  v.   Stone,   106   U. 

S.  525 337 

United    States    v.    Thomas,    15 

Wall.   (U.  S.)  337 316 

United  States  v.  Tingey,  5  Pet. 

(U.   S.)    129. 60,   259,  309 

United   States  v.  Trust  Co.,   89 

Fed.  921 113 

United   States   v.  United   States 

Fidelity  &  Guarantee  Co.,  186 

Fed.  477  333 

United   States  v.   United   States 

Fidelity  &  Guaranty  Co.    (U. 

S.  C.  C),  178  Fed.  721... 67,  113b 
United  States  v.  Van  Fossen,  1 

Dil.  (U.  S.)  406 429 


Sec 

United  States  v.  Van  Fossen,  28 
Fed.  Cas.  357,  No.  16607   ....   429 

United  States  v.  Vanzandt,  11 
Wheat.   (U.  S.)   184 314 

United  States  v.  Watts,  1  N. 
Mex.  553.  .  .   316 

United  States  v.  West,  8  App.  D. 
C.  59 70 

United  States  v.  Witten,  143  U. 
S.  76 314 

United  States  Co.  v.  Summers, 
110  Md.  95 112c 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Board  of  Commis- 
sioners of  Woodson  County, 
145  Fed.  144.  .    66,     67 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Commonwealth, 
31  Ky.  Law  Rep.  1179 67b 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Fultz,  76  Ark.  410     69 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Haggart,  91  C. 
C.  A.  289 54 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Jasper,  56  Tex. 
Civ.  App.  236 66 

United  States  Fidelity  &  Guar- 
anty Co.  V.   McGinnis'  Admr. 
(Ky.    C.    A.    1912),    145    S.    W. 
1112    194c,  200,  438,  447 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Means  &  Fulton 
Iron  Works  (Tex.  Civ.  App. 
1910),  132  S.  W.  536.....  112b,  141 

144a 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Merkly,  23  Ky. 
Law  Rep.  1570 284 

United  States  Fidelity  &  Guar- 
anty   Co.     V.     Parker     (Wyo. 
1912),  121  Pac.  531...... 259a,  269 

442 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Paxton,  142  Ky. 
361 189,  438 


652 


Table  of  Cases. 


Sec. 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Probst,  30  Ky. 
Law  Rep.  63.  . 112f 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Rice,  148  Fed.  206.144a 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Russell  Co.,  141  Ky. 
601    246 

United  States  Fidelity  &  Guar- 
anty Co.  V,  Sexton,  134  Ga. 
56 26 

United  States  Fidelity  &  Guar- 
anty Co.  c.  Siegmann,  87 
Minn.  175..  .  .  48a 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Studoval  (U.  S. 
S.  C.  1912),  32  Sup.  Ct.  298..   191 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Union  Trust  &  S. 
Co..  142  Ala.  532 54 

United  States  Fidelity  &  Guar- 
anty Co.  V.  United  States,  178 
Fed.   692.   .   .    113b 

United  States  Fidelity  &  Guar- 
anty Co.  In  re,  50  Misc.  R. 
(N.   Y.)    147.   .    296 

United  States  Glass  Co.  v.  Bot- 
tle Co.,  89  Fed.  993 102 

United  States  Glass  Co.  v.  Mat- 
hews, 89  Fed.  828.  . 104 

United  States  Gypsum  Co.  v. 
Central  Railway  &  Equipment 
Co.,   152  111.  App.   467 370 

United  States  Life  Ins.  Co.  v. 
Salmon,  157  N.  Y.  682 51 

University  of  Cambridge  v. 
Baldwin,  5  Mees.  &  W.  585..     84 

Urmston  V.  State,  73  Ind.  175.70,     75 

Utterson  v.  Elmore,  154  Mo. 
App.  646 66,  101,  112a,  112b 

V. 

Valtz  V.  Harris,  40  111.  155 348 

Van  Alstyne  v.  Sorley,  32  Tex. 

518.  ...   14 

Van  Buren  County  v.  American 


Sea 

Surety  Co.,  137  Iowa  490 66 

67,  443,  448 
Vance  v.  Hair,  25  Ohio  St.  349 . .  90 
Vance    v.    Lancaster,    3    Hayw. 

(Tenn.)   130.  . 184 

Vancil  v.  Hogler,  27  Kan.  407..  114 
Vanderbeck  v.  Tierney-Connelly 

Const.  Co.,  77  N.  J.  L.  664,  73 

Atl.   480 93a 

Vandergazelle    v.     Rodgers,     57 

Mich.  132 411 

Vanderveer  v.  Asbury  Park  &  B. 

S.  R.  Co.  (C.  C),  82  Fed.  355-.  30 
Van  Derveer  v.  Wright,  6  Barb. 

(N.   Y.)    547. 89 

Vandewater   v.    Davis,    92    Ark. 

604.  .  .    171 

Van    Etten   v.    Commonwealth, 

102  Pa.  St.  596.  . 333 

Van   Etten   v.    Koster,    48    Neb. 

152.  .  .  .   144 

Van  Keuren  v.  Parmelee,  2  N.  Y. 

523 90 

Van   Patton   v.   Beals,  46   Iowa 

62.  .  .  .   25 

Van  Pelt  v.  Little,  14  Cal.  194-.  324 
Van    Petten    v.    Richardson,    68 

Mo.  382 196 

Vansant  v.  State,  96  Md.  110 333 

Van    Sickel    v.    Buffalo    Co.,    13 

Neb.  103.  .  .   69,  301 

Van   Slyke  v.   Bush,   123   N.   Y. 

47 277 

Van  Valkenburgh  v.  Oldham,  12 

Cal.  App.  572.  .  .  66,  356 

Vaughn  v.  Smith,  65  Iowa  579.   392 

393 
Veach  V.  Rice,  131  U.  S.  293   . .  249 

257 
Veazie  v.  Willis,  6  Gray  (Mass.) 

90.  .  .  .    78,  351 

Vermeule  v.  York  Cliffs  Im- 
provement Co.,  105  Me.  350..    174 

182 
Vescheiser   v.   Newman,   135   N. 

Y.  Supp.  671  Ill 


Table  of  Cases. 


55a 


Sec. 

Vert  V.  Voss,  74  Ind.  565 157 

Vetter   v.    Welz    &    Zerwerk,    143 

App.  Div.   (N.  Y.)    121. 359 

Viele  V.  Hoag,  24  Vt.  46....  116,  193 
Village  of  Chester   v.   Leonard, 

68  Conn.  495.  .  .    45 

Villars  v.  Polner,  67  111.  204. ..  .  134 
Vivian  v.  Otis,  24  Wis.  518.. 273,  302 
Vliet  V.   Wyckoff,   42   N.   J.   Eq. 

642 201 

Vogel  V.  Melins,  31  Wis.  30.  .382  383 
Voltz  V.  National  Bank,  158  111. 

532 169 

Voorhies  v.  Atlee,  29  Iowa  49 . .  359 

360 
Voris  V,   Star  City   Building  & 

Loan  Assn.,  20  Ind.  App.  630.  377 
Voris  V.  State,  57  Ind.  345-. 263,  306 
Voss  V.  Bank,  83  111.  599- .....  •  99 
Voss  V.  Lewis,  126  Ind.  155 200 

W. 

Waddell   v,   Bradway,    84    Ind. 

537.  .  .  62 

Wade  V.  Creighton,  25  Oreg.  455  210 

Wade  V.  Graham,  4  Ohio  126...  253 
Wade  V.  Mt.  Sterling   (Ky.),  33 

S.  W.  1113   292 

Wadsworth  v.  Cheney,  13  Iowa 

576.  .  .  .   217 

Wagmore  v.  State,  80  Ind.  67  . .  325 
Waggoner    v.    Dyer,    11    Leigh. 

(Va.)    384 133 

Wagones  v.  Watts,  44  N.  J.  L. 

126 92 

Wain  V.  Walters,  5  East.  10.  ...  39 

Wait  V.  Wait,  28  Vt.  350 379 

Walch  V.  Miller,  51  Ohio  St.  462.  133 

Walch  V.  Seymour,  28  Conn.  387  282 

Waldsop  V.  Wolff,  114  Ga.  610..  65 

203 

Waldup  V.  Black,  74  Cal.  409...  1S6 
Walker  v.  Archer  (Mich.  1901), 

87  N.  W.  754 94 

Walker    v     Commonwealth,    79 

Ky.  292.  .  .   433 


Walker  v.  Dicks,  80  N.  C.  263. 


Walker  v.  Forbes,  25  Ala.  139, 


(Sec. 
144 
159 
353 
355 


Walker  v.  Hall,  1  Pick.  (Mass.) 

20.  .  ..   256 

Walker  v.  Hill,  119  Mass.  249..  377 
388,  391,  393,  398 
Walker  v.  Holmes,  22  Wend.  (N. 

Y.)   614 27 

Walker  v.   Holtzclaw,   57   S.   C. 

459 67 

Walker  v.  Patillo,  7  Lea  (Tenn.) 

449 255 

Walker   v.   Richards,   39   N.    H. 

259 398 

Walker  v.  Sherman,  11  Met.  170     44 

Walker  v.  State,  6  Ala.  350 423 

Walker  v.  Washington  Title  Ins. 

Co.,  19  App.  D.  C.  575 113 

Walker  v.  Waterman,  50  Vt.  107  407 
Walker  County  v.  Fidelity  &  De- 
posit Co.  of  Manford,  107  Fed. 

851 337 

Wallace  v.  Jewell,  21  Ohio  St. 

163 110 

Wallace  v.  Scoles,  6  Ohio  429..  27 
Waller   v.    German    Mercantile 

Co.    (Civ.   App.    1912),    141    S. 

W.   883 28,     30 

Walmerhausen        v.         Gullick 

(1893),  2  Ch.  514.   202 

Walrath   v.    Thompson,    6    Hill. 

(N.  Y.)    540.   .   .    363 

Walsh  V.  Miller,  51  Ohio  St.  462.  281 
Walsh  V.  People,  6  111.  App.  204  325 
Walter   v.   People,   28   111.   App. 

645 421 

Walters  v.  Carroll,  9  Yerg.  102.  332 
Walters  v.  Creagh,  4   Stew.  & 

P.  410 148 

Walters   v.   Swallow,   6   Whart. 

(Pa.)   44 122 

Walters-Cates  v.  Wilkinson,  92 

Iowa  129 329,  332 


554 


Table  of  Cases. 


Sec. 
Walton  V.  Mascall,  13  Mees.  & 

W.  452.  .  .   •  ■  •  •   122 

Wanamaker   v.   Berne,   3   Penn. 

188 348 

Wapello  Co.  v.  Bigham,  10  Iowa 

39    282,  305 

Wapello  State  Bank  v.  Colton, 

133  Iowa  147.  ...   72 

Ward  V.  Chum,  18  Gratt.   (Va.) 

801  52 

Ward  V.  Colquitt,  62  Ga.  267-  •• .  435 
Ward  V.   Hasbrouck,  169  N.   Y. 

407 381 

Ward   V.    Hasbrouck,    65   N.    Y. 

Supp.  200 381 

Ward  V.  Hobson,  17  Colo.  App. 

54  381 

Ward  V.  Joslin,  186  U.  S.  142  • .  28 
Ward  V.  Marion  County,  26  Tex. 

Civ.  App.  361   337 

Ward   V.   School   Dlst.,   10   Neb. 

293    317 

Ward  V.  Stahl,  81  N.  Y.  406-  277,  311 
Ward  V.  State,  III  Md.  528  ....  271 
Ward  V.  Stout,  32  111.  399.  . .  .14,  171 
Ward  V.  Tinkham,  65  Mich.  695  257 
Warden  v.  Ryan,  37  Mo.  App.  466     67 

100 
Ware  v.  Allen,  128  U.  S.  590-  ••  •  51 
Ware  v.   Stephenson,   10  Leigh. 

(Va.)  155  381 

Ware  v.  West,  64  Miss.  545 395 

Warner   v.    Cameron,    64    Mich. 

185   226 

Warner    v.    Morrison,    3    Allen 

(Mass.)   566   3,  194,  194a,  203 

Warren   v.   Abbott,   65   N.   J.   L. 

99,  46  Atl.  575   382 

Warren     v.     Gilmer,     11     Cush. 

(Mass.)    15    411 

Warren    v.    Tobacco    Exchange 

(Ky.)   55  S.  W.  912   78 

Warren  Bank  v.  Bank,  10  Cush. 

(Mass.)  582  336 

Warwick  v.  State,  5  Ind.  350  •  ■  244 
Waseca  Co.  v.  Sheehan,  42  Minn. 

57  314 


Sic. 

Wash  V.  State,  3  Cold.  (Tenn.) 

91  437 

Washburn  v.  Blundell,  75  Miss. 

266  174 

Washington  Bank  v.  Shurtleff,  4 

Met.  (Mass.)  30  169 

Washington  Co.  v.   Ins.  Co.,  26 

Conn.  42   59,  299 

Washington  Ice  Co.  v.  Webster, 

15  Wall.   (U.  S.)   426 238 

Waterbury  v.  Andrews,  67  Mich. 

281    126 

Waterman  v.  Clark,  76  111.  428-  •  144 
Waterman  v.  Vose,  43  Me.  504  •  ■  107 
Water  Power  Co.  v.  Brown,  23 

Kan.   676    210 

Waters   t.   Riley,   2   Har.   &  G. 

(Md.)  305   86,  201 

Watertown  Fire  Ins.  Co.  v.  Sim- 
mons, 131  Mass.  85..  127,  143,  288 
290,  291 
Waterville   Bank  v.   Redington, 

52  Me.   466    58 

Watkins  Medical  Co.  v.  Brand, 

143  Ky.  468    348 

Watkins  v.  Sands,  4  111.  App.  207  379 
Watkins   v.    Shaw,    2    Gill    &   J. 

220   255 

Watriss  v.  Pierce,  32  N.  H.  560 . 2,  3a 
Watson  V.  Whitten,  3  Rich   (S. 

C.)   224   ...253 

Wattles  V.  Hyde,  9  Conn.  10..  252 
Watts  V.  Shuttleworth,  7  Hurl. 

&  N.  353  130 

Waughop    V.    Bartlett,    165    111. 

124 90,  128,  167,  172,  192 

Waukford  v.  Wankford,  1  Salk. 

299   251 

Way  V.  Lewis,  115  Mass.  26-  .  ■  65 
Waydell  v.  Hutchison,  146  App. 

Div.  (N.  Y.)  448 302 

Wayne  v.  Bank,  52  Pa.  St.  343 . .  140 
287,  288,  291 

Way  V.  Reed,  6  Allen  364 Ill 

Way  V.  Wright,  5  Met.  (Ky.)  380  428 
Waycross  Air  Line  Co.  v.  Offer- 
man  &  W.  R.  Co.,  114  Ga.  727  224 


Table  of  Cases. 


555 


Sec. 
Wayland    v.    Tucker,    4    Gratt. 

(Va.)    268    152 

Weakley  v.  Bell,  9  Watts   (Pa.) 

273    122 

Weatherwax   v.    State,   17   Kan. 

427    420 

Weaver  v.  Prebster,  37  Ind.  App. 

582   114,  119,  121 

Weaver  v.   Shyrock,   6   Serg.   & 

R.    (Pa.)    262    86 

Weaver  v.  Thornton,  63  Ga.  655  265 
Weaver  v.  Wood,  9  Pa.  St.  220  •  •  341 
Webb  V.  Anspach,  3  Ohio  St.  522  311 
Webb  V.  Hewitt,  3  Kay  &  J.  438  116 

Webb  V.  Pope,  118  Ga.  627 232 

Webber    v.    Webber,    109    Mich. 

147  151 

Webster  v.  Cobb,  17  111.  466-  •• .  357 
Webster  v.  Fleming,  178  111.  140  11 
12,  13,  358 
Webster  Co.   v.   Hutchinson,   60 

Iowa  721    66,     69 

Weddington   v.    Commonwealth, 

79  Ky.  582  434 

Weed  v.  Grant,  30  Conn.  74 362 

Weed  Sewing  Mach.  Co.  v.  Aber- 

reicht,  38  Wis.  325   122 

Weed  Sewing  Mach.  Co.  v.  Max- 
well, 63  Mo.  486    376 

Weeks  v.  Love,   19  Ala.  25 244 

Weeks  v.  Parsons,  176  Mass.  570       3 

389 
Weems  v.  Lathrop,  42  Tex.  207  271 

274 
Wegner  v.  Wiltsie,  23  Ohio  C.  C. 

R.  302   264 

Wehr  V.  German  Congregation, 

47  Md.  177   102 

Wehrung  v.   Denham,   42   Oreg. 

386 112a 

Weidmeyer   v.    Landon,   66    Mo. 

App.   520    202 

Weilage     v.     Abbott,     3     Neb. 

(Unoflf.)    157    381 

Weiler  v.  Henarie,  15  Oreg.  28-  •  356 
Weir-Booger  Dry  Goods  Co.  v. 

Kelly,  SO  Miss.  64 182 


Sec 
Weir  Plow  Co.  v.  Walmsley,  110 

Ind.  242  67,  100 

Weisel  v.  Spencer,  59  Wis.  301 .  •  392 
Weisenborn    v.    People,    53    111. 

App.  32 329 

Welch  V.  Hubschmitt  Building  & 

Woodworking  Co.,  61  N.  J.  L. 

57    67,  138 

Welch  V.  Keokuk,  128  Wis.  419  113 
Welch  V.  Marwin,  36  Mich.  59..  398 
Welch  V.  Seymour,  28  Conn.  387     70 

305 

Wells  V.  McCoy,  4  Cow.  410 431 

Wells  V.  Miller,  66  N.  Y.  255 194 

Wells  V.  United  States  Fidelity 

&  Guaranty  Co.,  160  Mich.  213  441 
Wells  V.  Williams,  39  Barb.   (N. 

Y.)   567  79 

Welsh  V.  Ebers'ole,  75  Va.  651, 

656    339 

Welsh  V.  Schulz,  13  Daly,  132  •  ■  412 
Wendlandt   v.    Sohre,   37   Minn. 

162 20 

Wendling  v.  Taylor,  57  Iowa  354  114 
Wennall  v.  Adney,  3  Bos.  &  P. 

247   343 

Wesley  Church  v.  Moore,  10  Pa. 

St.  273    192 

West  V.  Prison,  99  Mo.  694 147 

West  V.  Colquitt,  71  Ga.  559 426 

West  V.  Grainger,  46  Fla.  257-.   374 

West  V.  O'Hare,  55  Wis.  645 398 

Westbrook    v.    Belton    National 

Bank,  97  Tex.  246  122 

Westbrook  v.  Moore,  59  Ga.  204  74 
Westcott  V.   Fidelity  &   Deposit 

Co.  of  Maryland,  87  App.  Div. 

(N.  Y.)   497   74 

Western,  etc.,  Ins.  Co.  v.  Clin- 
ton, 66  N.  Y.  326    287 

Westervelt  v.  Mohrenstecker,  76 

Fed.   118    70,     71 

Westfall    V.    Parsons,    16    Barb. 

(N.  Y.)   645   374 

West   Hunterville   Cotton   Mills 

Co.  V.  Alter,  164  Ala.  305,  51 

So.  338  193 


656 


Table  of  Cases. 


Sec. 
Westmoreland  v.  Porter,  75  Ala. 

452 374,  377,  392,  396 

Weston  V.  Barton,  4  Taunt.  673  84 
Weston  V.  Chamberlin,  7  Cush. 

(Mass.)  404  210 

Wetherby    v.    Mann,    11    Johns. 

(N.  Y.)  518   195 

Wetzel   V.   Sponsler,   18   Pa.   St. 

460   146 

Wetzell  V.  Waters,  18  Mo.  396  •  •   219 

231 
Whaley        v.        Commonwealth 

110  Ky.  154,  61  S.  W.  35 323 

Wheeler  v.  Lewis,  11  Vt.  265 359 

Wheeler  v.  Mayfield,  31  Tex.  395  340 
Wheeler  v.  Rohrer,  21  Ind.  App. 

477   m 

Wheeler  v.  State,  39  Kan.  163..  424 
Wheeler  v.  State,  38  Tex.  173.-  426 
Wheeler     v.     Traders'     Deposit 

Bank,  107  Ky.  653    78,  125 

Wheeler    v.    Werner,    140    App. 

Div.   (N.  Y.)   695   93a 

Wheeling   v.   Black,   25   W.   Va. 

266   318 

Whelen  v.  Boyd,  114  Pa.  St.  228     66 

100,  103 
Whereatt  v.  Ellis,  103  Wis.  348    74 

94,  183 
Whigham  t.  Hall  &  Co.,  8  Ga. 

App.   509    101 

Whipf)  V.  Casey,  21  R.  I.  506,  45 

Atl.  93    298 

Whipple  V.  People,  40  111.  App. 

301  403 

Whitaker  v.  Kirby,  54  Ga.  277- .     51 

147,  148 
Whitbeck    v.    Ramsey,    74    111. 

App.   524    152,   176,  187 

Whitcomb   v.  Whiting,  2   Doug. 

652  371 

White  V.  Boone,  71  Fed.  712 ... .  21 
White  V.  Colton,  53  Ind.  372- .  -  •  8 
White  V.  Coventry,  29  Barb.  (N. 

Y.)  305  61 

White  V.  Ditson,  140  Mass.  351  244 

255 


Sec. 
White  V.  Dtiggan,  140  Mass.  18     51 

56 
White  V.  East  Saginaw,  43  Mich. 

587    310,  312 

White  V.  Fox,  22  Me.  341 313 

White     V.     French,     15     Gray 

(Mass.)    339    230 

White  V.  Guest,  6  Blackf.  (Ind.) 

228   412 

White  V.  Miller,  47  111.  385-   175,  180 

195 
White  V.  Moe,  19  Ohio  St.  37. .  •  ■  253 
White  V.  Prigmore,  29  Ark.  208  227 

White  V.  Reed,  15  Conn.  457 356 

White  V.  Shepherd.  140  Ky.  349  107 
White  V.  Walker,  31  111.  422. ..  .  Ill 
White  V.  Weatherbee,  126  Mass. 

450    60 

Whiteaker  v.  State,  31  Okla.  65  437 
Whitehead   v.    Woolfolk,    3    La. 

Ann.  43    321 

Whitehouse   v.   Glass,   7   Grant. 

Ch   47  183 

Whitehouse  v.  Hanson,  42  N.  H. 

9    5,  194 

Whitehurst  v.  Hyman,  90  N.  C. 

487    377 

Whiteman  v.  Harriman,  85  Ind. 

49  208 

White     Sewing     Mach.     Co.     v. 

Courtney,  141  Cal.  674 87,  367 

White     Sewing     Mach.     Co.     v. 

Hines,  61  Mich.  423 79,     83 

White   Sewing    Machine   Co.    v. 

Saxon,   121   Ala.   399 51 

Whitestown,    Town    of   v.    Title 
Guaranty    &    Surety    Co.,    72 
Misc.  R.  (N.  Y.)  498. 302,  442,  443 
Whitford    v.    Laidler,    94    N.    Y. 

145  51 

Whitlock   T.   Doolittle,   18  Vt.   44  90 

Whitmer  v.  Frye,  10  Mo.  348 107 

Whitmore  v.  Adams,  17  Iowa  567     26 
Whitworth   v.    Carter,    43    Miss. 

61  92 

Whitworth  v.  Pillman,  40  Miss. 
76    183 


Table  of  Cases. 


557 


Sec. 
Whitney  v.  Groat,  24  Wend.  (N. 

Y.)    81 355 

Whitney  v.  Hale,  67  N.  H.  385-  •  14 
Whittier  v.  Gould,  8  Watts  485  20 
Whittier  v.  Hemingway,  22  Me. 

238  163 

Wickham  v.  Wickham,  2  Kay  & 

J.  478    394 

Widener  v.  State,  45  Ind.  244...  334 
Wiehler  v.  People,  68  111.  App. 

282    324 

Wiggins  V.  Tyson,  112  Ga.  744  • .  421 
Wiggins     V.     WellS',     2     Sneed 

(Tenn.)    154    240 

Wiggin's  Appeal,  100  Pa.  St.  155  92 
Wight  V.  Keyes,  103  Pa.  St.  567  213 

Wild  V.  Home,  74  Mo.  551 115 

Wildcat  Branch  v.  Ball,  45  Ind. 

213    54 

Wilde  V.  Baker,  14  Allen  (Mass.) 

349  274 

Wilde  V.  Dudlow,  L.  R    19  Eq. 

Gas.  198   383 

Wildes  V.   Savage,   1   Story    (U. 

S.)   22    45 

Wiley  V.  Bank,  47  Vt.  546 29 

Wiley  V.  Moor,  17  Serg.  &  R.  292  52 
Wilhelm  v.  Voss,  178  Mich.  106  391 
Wilkinson    v.    Conley,    133    Ga. 

518    93a,  133 

Wilkinson  v.  Herd,  65  Mo.  App. 

491   32 

Wilks  V.  Adcock,  8  Term  R.  27-  ■  217 
Williams  v.  Auten,  62  Neb.  832  374 

398 
Williams  v.  Bank,  11  Md.  242-.  174 
Williams   v.    Bedford    Bank,    63 

App.    Div.    (N.    Y.)    278 381 

Williams  v.  Boyd,  78  Ind.  286-.  21 
Williams  v.  Candler,  119  Ga.  179  431 
Williams  v.  Glenn,  92  N.  C.  253  210 
Williams  v.  Gooch,  73  111.  App. 

557   117 

Williams    v.    Harrison,    19    Ala. 

277   303 

Williams  v.  J©nson,  75  Mo.  681  114 


Sec. 

Williams  v.  Kennedy,  134  Ga. 
339,  67  S.  E.  821 128 

Williams  v.  Marshall,  42  Barb. 
(N.  Y.)   524   54 

Williams  v.  Morehouse,  9  Conn. 
470   252 

Williams  v.  Morris  (Ark.  1911), 
138  S.  W.  464    51,  126 

Williams  v.  Morton,  38  Me.  52-  •   310 

Williams'  v.  Nichols,  10  Gray. 
(Mass.)  83  191 

Williams  v.  Ogg  &  Keith  Lum- 
ber Co.,  42  Tex.  Civ.  App.  558  134 

144a 

Williams  v.  Parks,  63  Neb.  747, 
89   N.   W.   395    301,  336 

Williams  v.  Perkins,  21  Ark.  18     35 

40,  341 

Williams  v.  Rees,  15  Ohio  572  ••   211 

Williams  v.  Riehl,  127  Cal.  365.194a 

Williams  v.  Shelby,  2  Greg.  144  431 

Williams  v.  State,  55  Ala.  71 423 

Williams'  v.  State,  89  Ind.  570- •   260 

Williams  v.  Williams,  5  Ohio  444  176 

192 

Williamson  v.  Goodman,  73  Me. 
163   60 

Williamson  v.  Hill,  3  Mackey 
100    377,  396 

Williamson  v.  Woodman,  73  Me. 
163    59,  266 

Williams-Thompson  Co.  v.  Wil- 
liams (Ga.  App.  1912),  73  S.  E. 
409   114 

Willingham  v.  Ohio  Val.  Bank- 
ing &  Trust  Co.,  22  Ky.  Law- 
Rep.  158 152,  157 

Willington  v.  Apthorp,  145  Mass. 
69   341 

Willis  V.  Chowning,  90  Tex.  617  172 

173 

Willis  V.  Commonwealth,  85  Ky. 
68  421 

Willis  V.  Crooker,  1  Pick. 
(Mass.)    204    2?7,  411 

Willis  V.  Fields,  132  Ga.  242 129 


558 


Table  of  Cases. 


Sec. 
Willmington,  etc.,  R.  R.  Co.  v. 

Long,  18  S.  C.  116 288,  293 

Willoughby  v.  Fidelity  &  De- 
posit   Co.     of    Maryland,     16 

Okla.  546  287,  287a 

Willoughby  v.  Irish,  35  Minn.  63  90 
Wills  V.  Cooper,  2  Ohio  St.  324  245 
Wills  V.  Dill,  6  Martin  (La.)  665  54 
Wills  V.  Evans,  18  Ky.  Law  Rep. 

1067   24 

Wills  V.  Hurst,  101  Tenn.  656-.  122 
Wills  V.  Ross,  77  Ind.  1....356,  398 
Wills  V.  Shinn,  42  N.  J.  L.  138-  •  389 
Wilson  V.  Bevans,  58  111.  232..   341 

384,  397 

Wilson  V.  Burney,  8  Neb.  39 152 

Wilson  V.  Carrico,  50  W.  Va.  336  174 
Wilson  V.  Crawford,  47  Iowa  469  174 

176,  211 
Wilson  V.  Fort,  11  Mete.  (Mass.) 

285   113,  120,  171 

Wilson  V.  Hentges,  29  Minn.  102  390 
Wilson  V.  Kieffer,  141  Mo.  App. 

137    194 

Wilson  V.  Land  Security  Co.,  26 

Can.  Sup.  Ct.  149 11 

Wilson  V.  Monticello,  85  Ind.  10  61 
Wilson   V.    People,    10    111.   App. 

357   424 

Wilson  V.  Phillips,  27  Tex.  543  152 
Wilson  V.  Powers,  130  Mass.  427  49 
Wilson    V.    Stanton,    6    Blackf. 

(Ind.)    507    206 

Wilson  V.  State,  67  Kan.  44,  72 

Pac.  517    301,  311 

Wilson  V.  State,  1  Lea   (Tenn.) 

316   320 

Wilson  V.  Stilwell,  9  Ohio  St.  470  182 
Wilson  V.  Tebbetts,  29  Ark.  579  145 
Wilson  V.  Webber,  157  N.  Y.  693  112 

113 
Wilson  V.  Whitmore,  92  Hun  (N. 

Y.)   466   67,  112,  113 

Wilson  V.  Wichita  Co.,  67   Tex. 

647   317 

Wimberly  v.  Windham,  104  Ala. 

409 5 


Sec- 
Winang   v.   Cable,   etc.,   Co.,    48 

Kan.   777    342 

Winchell  v.  Hicks,  18  N.  Y.  558     90 
Windell  v.  Hudson,  102  Ind.  521  395 
Windmiller   v.    Standard   Distil- 
ling Co.,  186  N.  Y.  572   28 

Windmiller   v.    Standard   Distil- 
ling &  Distributing  Co.,  106  App. 

Div.   (N.  Y.)   246    28 

Wingate  v.  Wilson,  33  Ind.  78..   228 

238 
Winn  V.  Sanford,  145  Mass.  302     92 

376 
Winne    v.    Nuhrbach,    140    App. 

Div.   (N.  Y.)   329    374 

Winnebago  County  Statei  Bank 

V.  Hustel,  119  Iowa  115 113a 

Winninger  v.  State,  23  Ind.  228  411 

431 
Winship  v.  Bass,  12  Mass.  198..  251 

252 
Winterfield    v.    Cream    Brewing 

Co..  96  Wis.  239    30 

Winter,  Jr.,  &  Co.  v.  Forrest,  145 

Ky.  581  141 

Winthrop,     Inhabitants     of     v. 

Soule,  175  Mass.  400,  56  N.  E. 

575    290 

Wipperman    v.    Hardy,    17    Ind. 

App.   142    36 

Wise  V.  Miller,  45  Ohio  St.  388       2 

348 

Wise  V.  Shepherd,  13  111.  41 145 

Wise  Coal  Co.  v.  Columbia  J.  &  L. 

Co.,  138  S.  W.  67    216 

Witherby  v.  Mann,  11  Johns.  (N. 

Y.)    518    180 

Withrow    v.    Commonwealth,    1 

Bush.  17 429 

Witkowski  v.  Hern,  82  Cal.  604  325 
Witt  V.  Aurarillo  National  Bank 

(Tex.  Civ.  App.  1911),  135  S. 

W.   1108    11 

Wittmer  v.  Ellison,  72  111.  301..   115 

117 
Wittmer  Lumber  Co.  v.  Rice,  23 

Ind.  App.  586   30 


Table  of  Cases. 


559 


Sec. 
Wize  V.  Washburn,  8   Ga.  App. 

408   385 

Wofford  V.  Unger,  55  Tex.  480-.  371 
Wolf  V.  Driggs,  44  N.  J.  Eq.  363  50 
Wolf  V.  Madden,  82  Iowa  114-51,  147 
Wolf  V.  Stover,  107  Pa.  St.  206-  ■  207 
Woltboro   Loan   «6;   Banking   Co. 

V.  Rollins,  195  Mass.  323 144a 

Wolfe  V.  State,  59  Miss.  338 264 

Wolfe  &  Sons  v.  McKeon   (Ala. 

1911),   57   So.   63    25 

Wolff  V.  Koppel,  5  Hill  458 394 

Wollenberg   v.   Sykes,   49   Oreg. 

163   51 

Wolmershausen       v.       Gullick 

(1893),  2  Ch.  514   211 

Wood  V.  Atlantic  &  N.  C.  R.  Co., 

131   N.   C.   48    374,  391 

Wood  V.  Farnell,  50  Ala.  546-.  320 
Wood  V.  Fish,  63  N.  Y.  245-. 74,  226 
Wood  V.  Leland,  1  Mete.  (Mass.) 

387    173,  211 

Wood  V.  Newkirk,   15   Ohio   St. 

295    46 

Wood  V.  Patch,  11  R.  I.  445 398 

Wood   V.   School   Dist.,   10   Neb. 

293   316 

Wood  V.  Squires,  28  Mo.  397..  217 
Wood  V.  Steele,  6  Wall.  (U.  S.) 

80    55,    103,    104,  107 

Wood  V.  Tunnicliff,  74  N.  Y.  38  342 
Woodman  v.  Calkins,   13   Mont. 

363   54 

Woods  V.  Bank,  85  Pa.  St.  57. .  •  154 
Woods  V.   Sherman,   71   Pa.   St. 

100    4,  348 

Woodworth  v.  Bank,   10  Johns. 

(N.  Y.)  420   108 

Wooley   V.    Moore,   61   N.    J.   L. 

16   357 

Woolfolk  V.  Plant,  46  Ga.  422..    119 

Woolley  V.  Cobb,  1  Burr  244 408 

Woolley  V.  Price,  8  Md.  176  •  .  255 
Woolley  V.  Van  Valkenburgh,  16 

Kan.  20    76 

Woonsocket  Rubber  Co.  v.  Bani- 

gan,  21  R.  I.  546,  42  Atl.  512. .   358 


Sec. 
Worcester  Sav,  Bank  v.  Hill,  113 

Mass.   25    341 

Worgang  v.  Clipp,  21  Ind.  119 . .  253 

261 
Work   Bros.   v.   Kinney,   8    Ida. 

771,  71  Pac.  477    302 

Work   of   the   World   v.    United 

States    Fidelity    &    Guaranty 

Co.,  152  111.  App.  223 69 

Worrall  v.  Munn,  1  Seld.  229 ...  •  50 
Worrell  v.  Forsyth,  141  111.  42  19 
Worsham  v.  Stevens,  66  Tex.  89  183 
Worthington  v.  Gay,  7  Sm.  &  M. 

522    119 

Worthington  v.  Whitefield  (Tex. 

Civ.  App.),  142  S.  W.  23 183 

Wray  v.  People,  70  111.  664 434 

Wright  V.  Butler,  6  Wend.    (N. 

Y.)    284    176 

Wright  V.  Dyer,  48  Md.  525 349 

Wright  V.  German  Brewing  Co., 

103  Md.  377  141 

Wright  V.  Griffith,  121  Ind.  478       4 

348,  355 
Wright  V.  Johnson,  8  Wend.  (N. 

Y.)  512   362 

Wright  V.  Jones,  55  Tex.  Civ. 

App.  616,  120  S.  W.  1139 112 

Wright  V.  Long,  66  Ala.  389 251 

Wright  V.  Morley,  11  Ves.  12,  22     12 

151 
Wright  V.  Schmidt,  47  Iowa  233  27 
Wright  V.  Simpson,  6  Ves.  714  290 
Wright  V.  Smith,  47  Iowa  233 .  .  27 
Wright  Steam  Engine  Works  v. 

McAdams,    113   App.   Div.    (N. 

Y.)   872   100 

Wussow  V.  Hase,  108  Wis.  382  69 
Wyatt  V.  Hodson,  8  Bing.  309..  371 
Wyke  V.  Rogers,  1  De  Gex  M.  & 

G.    408    116 

Wyman  v.  Goodrich,  26  Wis.  21  390 
Wyman   v.   Jones,   58   Mo.   App. 

313    5 

Wyman  v.  Robinson,  73  Me.  384     74 

269 
Wyman  v.  Yoemans,  84  111.  403  105 


560 


Table  of  Cases. 


Sec 
Wynn  v.  Brooke,  5  Rawle  (Pa.) 

106    183 

Wyson  V.   Meyer,   58   App.  Div. 

(N.  Y.)    422    11 

Y. 

Yager  v.  Kentucky  Title  Co.,  23 

Ky.  Law  Rep.  2240    360 

Yale  V.  Edgerton,  14  Minn.  194  397 
Tales    V.    Wheelock,    109    Mass. 

502    92 

Yallop  V.  Ebers,  1  Bam.  &  Ad. 

703    15 

Yancey  v.  Brown,  3  Sneed  89  ■  ■  355 
Yarborough   v.    Commonwealth, 

89   Ky.    151    414,  429 

Yates  V.  Donaldson,  5  Md.  389  171 
Yates,  Ex  parte,  2  DeG.  &  J.  191  110 
Yeager,  In  re,  10  Daly  (N.  Y.)  7  281 
Yeoman  v.  MuUer,  33  Mo.  App. 

438  381 

Yerxa  v.  Ruthruff,  19  N.  D.  13 . .  134 
Y.  M.  C.  A.  of  North  Yakima  v. 

Gibson,  58  Wash.  307,  108  Pac. 

766    112d 

Yndo  V.  Rivas  (Tex.  Civ.  App.), 

142  S.  W.  920 178,  180,  192 

York  Co.  V.  Watson,  15  S.  C.  1  317 
York  County  Ins.  Co.  v.  Brooks, 

51    Mo.    506    57,  315 

Yorkshire,     etc.,     Ins.     Co.     v. 

Maclure,  19  Ch.  Div.  478   382 

Yost  V.  State,  80  Ind.  330 263 


Sec. 
Young    V.    American    Bonding 

City  of  Baltimore,  228  Pa.  St. 

373   100,  442,  443 

Young  V.  French,  35  Wis.  111..   381 

392 
Young  V.  McFadden,  125  Ind.  254  2 
Young  V.  Morgan,  89  111.  199..  155 
Young  People,  35  111.  App.  363  244 
Young  V.  Shunt,  30  Minn.  503..       3 

203 
Yount  V.  Carney,  91  Iowa  559-.  326 
Yule  V.  Bishop,  133  Cal.  574-  ••  •  178 
Yung's,   In   re.   Estate,   199   Pa. 

St.  35   243 

Z. 

Zabriskie    v.    Railroad    Co.,    23 

How.    (U.   S.)    397    28,  365 

Zang    V.    Hubbard    Building    & 

Realty   Co.    (Civ.   App.   1910), 

125  S.  W.  85 100,  112a 

Ziegler    v.    Commonwealth,    12 

Pa.  St.  227    333 

Ziegler  v.  Hallahan,  126  Fed.  788  111 
Zimmerman  v.  Chelsea  Savings 

Bank,  161  Mich.  691.  704 67a 

Zollickoffer  v.  Seth,  44  Md.  359  201 
Zuellig  V.  Hemerlie,  60  Ohio  St. 

27    192 

Zuendt  v.  Doerner,  101  Mo.  App. 

528   35 

Zurfluk  V.  Smith,  135  Cal.  644..   263 

265 


INDEX. 


[References  are  to  Sections.] 

A. 

Seo. 

ABSENCE, 

of  principal  from  State — effect  on  surety's  liability 91 

ACCEPTANCE, 

of  mortgagee  to  malce  purchaser  principal  13 

of  draft  as  principal 15 

of  offer  to  forbear  necessary   44 

of  offer  to  pay  debt  of  another — when  necessary  45 

by  architect — building  contract  112f 

of  new  note^ — effect  on  surety   122 

of  obligee,  knowing  of  conditions   129 

promise  must  be  accepted  to  be  binding  341 

of  guaranty — when  necessary    848 

when  necessary — continuing  guaranty 355 

ACCEPTOR, 

of  a  bill  is  the  principal   15,     16 

ACCOMMODATION  INDORSER, 

relation  of  14 

corporation  as    n,  30 

pledging  of  note   87 

remedies  of  183 

rights  to  purchase  the  note 186 

right  of  contribution   206 

ACCORD  AND  SATISFACTION, 

payment  of  judgment  by  one  co-surety  not  accord  and  satis- 
faction     194 

by  principal    295 

ACCOUNTING, 

administrator  not  accounting  for  his  debt  to  the  estate  •  •  •  -251,  252 

failure  of  administrator  or  executor  to  account  256 

by  surety  of  deceased  guardian  259 

of  guardian   261 

of  guardian — discharge  of  surety   263 

of  guardian  with  ward  after  reaching  majority  265 

liability  of  sureties  on  receiver's  bond   271 

by  assignee — discharge  of  sureties   280 

officer  failing  to  account 292 

(561) 


562  Index. 

ACKNOWLEDGMENT,  Sec. 

false  certificate  of,  by  clerk 333 

false  acknowledgment  by  ustice  of  peace  334 

certifying  by  notary  public — grantor  being  absent 336 

certifying,  without  reading   336 

of  barred  debt,  as  to  guarantor  371 

ACTION. 

against  surety  and  principal  1 

by  mortgagee  against  purchaser  of  mortgaged  premises 12 

of  surety  against  principal  who  has  not  signed  the  bond 52 

on  bond — surety  denying  court's  jurisdiction   62 

legal  proceedings — order  of  liability  of  sureties  73 

covenant  not  to  sue 120,  121 

failure  of  creditor  to  sue  principal  134 

set-off  and  recoupment  144 

compelling  creditor  to  bring  suit 145 

compelling  creditor  to  resort  to  collaterals  14& 

right  of  surety  to  defend  150 

successive  sureties  in  appeal   168 

surety's   defense    170 

by  creditors 171 

against  principal  by  surety   176 

what  action  the  surety  may  bring  against  the  principal 178 

when  surety's  right  is  complete 182 

when  surety  can  plead  usury  185 

what  amount  can  be  collected  from  principal  by  surety 186 

joint  suit  by  sureties  187 

how  much  surety  can  recover  from  principal 188 

payment  by  surety — principal  not  being  liable 190 

relief  of  surety  in  equity 193 

right  of  surety  to  compel  contribution  194 

enforcement  of  contribution  at  law 196 

enforcement  of  contribution  in  equity 197 

liability  to  contribute  is  several  200 

by  co-surety  before  payment  of  debt  202 

of  co-sureties  under  different  instruments  203 

may  compel  contribution — co-sureties  20S 

defense  of  surety   224 

action  for  damages  by  officer  230 

when  suit  may  be  brought  for  breach  of  injunction  bond 233 

when  action  lies  against  executor  or  administrator 242 

bring  action  by  joint  executor  24^ 

when  arises  against  surety  on  administrator's  bond   258 

when  arises  against  surety  on  guardian's  bond 264 

right  of,  against  sureties  on  receiver's  bond  272* 

summary  action  against  surety  on  receiver's  bond  272 

covenant  not  to  sue  294 


Index.  563 

ACTION— Continued.  Sec. 

on  officer's  bond 298 

bond  of  public  officers — who  may  sue  on n,  301 

bond  of  clerk  of  court — who  may  sue  n,  329 

condition  precedent — suit  against  clerk 331 

when  demand  is  necessary  before  bringing  suit — tax  collector-  ■   337 

by  assignee  of  guaranty  357 

by  assignee  of  guaranty  under  seal 358 

guaranty  of  collection — when  suit  must  be  brought 359 

guaranty  of  forged  signature — rights  of  action  371 

payment  of  verbal  guarantee — effect 372 

ACT  OF  GOD, 

accounting  for  public  funds    n,  301 

discharge  of  bail  412 

exoneration  of  bail  by  428 

ADMINISTRATORS, 

see  "  Executors  and  Administrators." 

AFFIRMATION, 

of  infant's  contract    24 

of  insane  person's  contract  25 

of  ultra  vires  contract   30 

of  attachment  judgment — liability  of  surety  224 

of  judgment  by  agreement 228 

AGENT, 

of  surety  company — statute  as  to 438 

of  surety   companies — law    relating   to   insurance   agents   ap- 
plicable     444 

of  surety  companies — apparent  scope  of  authority 446 

of  surety  companies  with  written  authority 447 

see  "  Private  Officers  and  Agents." 

ALLOWANCES, 

by  administrator  to  intestate's  family 250 

ALTERATIONS, 

of  note  or  bond  after  execution — effect  55 

of  principal's  contract  100,  101 

of  instrument — effect  102 

material  alterations   103 

of  commercial  paper  104 

of  date  of  instrument  105 

of  amount  of  instrument  106 

of  the  rate  of  interest  107 


564  Index. 

ALTERATIONS— Continued.  Sec. 

changing  the  place  of  payment 108 

destroying  the  identity  of  the  contract  109 

addition  of  a  surety  to  a  note  110 

changing  the  contract  of  a  lease  Ill 

surety  in  building  contract  released  by   112a 

where  change  authorized — building  contract   112b 

permissive  and  immaterial — building  contract  112c 

of  note — payment  by  surety — right  to  contribution  194 

of  principal  contract — discharge  of  guarantor   362 

bonds  of  private  officers  and  agents  297a 

obligation  of  bail   427 

AMBIGUITIES, 

rule  as   to    n,     67 

AMENDMENT, 

of  attachment  proceedings  217 

discharging  bail 411 

AMOUNT, 

alteration    of — effect    106 

what  surety  can  collect  from  principal   186,  196 

oo-surety  paying  less  than  face  value — effect  198 

co-surety  may  limit  liability   205 

increase  of,  in  appeal — liability  of  sureties  227 

liability  of  surety  on  official  bond 327 

when  limited  in  guaranty   354 

in  letters  of  credit  355 

see  "  Liability." 

APPEALS, 

bond  signed  by  partner  n,     26 

bond  by  corporation    n,     28 

act  of  legislature  releasing  sureties   n,     72 

bond  strictly  construed    n,  224 

satisfaction  of  judgment — liability  of  surety  224 

to  special  court — change   225 

liability  of  sureties — joint  or  several   226 

judgment  varied  on  appeal   228 

successive  appeal    229 

by  surety  on  assignee's  bond 278 

duty  of  clerks  of  court  333 

bail  on — criminal  cases  422 

in  case  of  forfeiture   436 

APPEARANCE, 

of  principal — liability  of  bail   423 

after  forfeiture  of  bail  bond  435 

voluntary,  of  principal — costs'   435 


Index.  565 

APPLICATION,  Sec. 

for  bond  and  bond  construed  together   287a,  445 

to  set  aside  forfeiture  of  bail  bond  434 

APPLICATION  OF  PAYMENTS, 

general  rule   97 

by  law   98 

of  debtor's  deposits 99 

guaranty    361 

APPOINTMENT, 

denying  valid  appointment  of  principal  by  Burety^ffect 60 

of  executor  who  owes  the  estate 251,  252 

of  agent  of  corporation — duration  of  liability  282 

APPORTIONMENT, 

of  debt  among  solvent  sureties 196 

see  "  Contribution — Co-sureties." 

ARBITRATION, 

payment  of  amount — right  to  contribution 194 

without  surety's  consent  241 

discharge  of  bail    411 

ARCHITECT, 

certificate  of — building  contracts  112d,  112f 

ARRESTS, 

in  civil  action — bail   404 

by  bail  of  their  principal  414 

illegal — liability  of  bail  424 

of  principal  on  different  charge 426 

after  forfeiture  of  bail  bond  435 

see  "  Bail  in  Civil  Actions — Bail  in  Criminal  Actions." 

ASSIGNEE, 

liability  of  surety  on  assignee's  bond 277 

estoppel  of  surety  by  judgment  against  assignee 278 

giving  new  bond  279 

default  of  280 

discharge  of  surety 281 

misconduct  as 326 

of  guaranty    357 

of  guaranteed  notes  364 

converting  assignor's  property  into  money  to  pay  debt 379 

of  promissory  note 390 


566  Index. 

ASSIGNMENT,  Sec. 

of  lease — effect  on  surety Ill 

of  principal — rights  of  surety  who  owes  principal  162 

of  note  to  surety  after  payment 178 

declared  void — effect  on  surety  280 

of  guaranty  357 

of  guarantied  paper    365 

of  promissory  note 390 

ASSUMPSIT, 

by  surety  against  principal  .  .   178 

right  of  co-surety  to  bring , •• . .   195 

on  contracts  under  seal.  .    358 

ASSUMPTION, 

of  mortgaged  debt  by  purchaser — rights  of  mortgagee 12 

of  partnership  debts  by  one  partner  after  dissolution 20 

of  liability  by  guarantor 382 

ATTACHMENT. 

of  property  of  debtor  by  creditor — effect 131 

discharge  of  surety  by  dissolution  of 213 

exoneration  of  surety  on  attachment  bond 214 

non-suit  in,  effect  on  surety - 215 

lien  being  discharged — bankruptcy  of  principal 216 

power  to  amend  proceedings  in  attachment  suit 217 

bringing  in  new  parties  defendants.    218 

trespass  by  officer.  .  . 219 

delivery  bond — rights  of  surety  as  to  property 220 

void  bond  in 221 

damages  in 222 

when  surety  is  concluded.  .   223 

appeal  bond — discharge  of  surety.  . 224 

neglect  of  officer.  .  . .  325 

wrongfully  issued  by  justice 334 

ATTORNEY  FEES, 

when  surety  may  collect  against  principal 183 

right  of  so-surety  to  collect 196 

co-surety  may  incur 200 

in   attachment — liability   of   surety 224 

ATTORNEYS-AT-LAW, 

becoming  surety   for  their   clients 27 

no  authority  to  grant  extension n,  113 


Index.  667. 

B. 

BAIL,  Sec. 

are  sureties  with  same  liabilities ,•• 73 

definition    of.    ..    . 402 

distinction   as   to   mainpernors. 403 

arrest   in   civil   actions 404 

obligation   of.    .    .    •• 405 

when  entitled  to  costs 406 

BAIL  IN  CIVIL  ACTIONS, 

arrests — bail 404 

obligation  of 405 

rights  of 406 

subrogation  of  bail.  . 406 

extent  of  liability.   .    407 

discharge  of  principal  in  bankruptcy  or  insolvency 408 

payment  by  imprisonment  of  the  principal 409 

different  sets  of  bail.  .   410 

exoneration  of.  .  .    411 

exoneration   of   performance   of   condition 412 

BAIL  IN  CRIMINAL  ACTIONS, 

principal   in  custody  of  bail 413 

rights  and  liability  of  bail 414 

implied   contract   of   indemnity 415 

express  contract  of  indemnity  to  bail 416 

extent  of  bail's  liability.    417 

costs.  .  .  .  .   418 

joint  and  several  liability  of  bail 419 

effect   of   pardon.    .    420 

delivery  of  principal  by  bail 421 

on  appeal — liability 422 

appearance  of  principal.  .  .  423 

re-arresting  principal  on  the  same  charge 424 

giving  a  new  bond.  .   425 

arresting  principal   on   different  charge ' 426 

bail  are  released  by  a  change  of  their  obligations 427 

exoneration  of  bail  by  act  of  God 428 

exoneration  of  bail  by  act  of  law 429 

exoneration  by  act  of  obligee 430 

exoneration  of  sureties  in  general 431 

subrogation  in  criminal  actions 432 

effect  of  forfeiture  of  bond 433 

setting  aside  forfeiture 434 

voluntary  appearance  or  arrest  after  forfeiture — costs 435 

effect  of  remission  of  forfeiture 436 

taking  money  in  lieu  of  bail 437 


568  Index, 

BAILMENT,  Seo. 

responsibility  of  officer  for  money  not  determined  by  rules  of  •  •  316 

BANK  DEPOSITS, 

application  of  debtor's   deposits. 99 

illegal   deposits  by  public  officer 301 

by  public  officer — liability.  .  .   317 

making  profit  on,  by  officer 318 

guaranty  of — illegal 351 

BANK  MESSENGER, 

liability   of   his   sureties.    285 

BANKRUPTCY, 

of  debtor — effect  on  surety.    131 

of  co-surety — liability  to  contribute.    212 

of  principal  in  attachment — effect 216 

attachment — discharge    of    principal 224 

discharge  of  principal — rights  of  bail 408 

see  "  Insolvency." 

BANKS, 

see  "  National  Banks." 

BILLS  AND  NOTES, 

execution  of  new  note 8 

made  payable  to  maker— rights  of  indorser 17 

joint  and  several  notes — liability  of  makers  22 

given  by  corporations 28 

indorsement  of,  before  and  after  execution 36 

surrendering  old  note  for  new 37 

consideration  for  extension  of  time  of  payment 43 

extension  of  time  of  payment — consideration 46,  47,  48 

alteration  of — effect.  .  .   55 

filling  blanks  in.  .    57 

guaranty  may  cover  note  given  on  pre-existing  debt 69 

transfer  of  guarantied.  .   82 

pledging  accommodation  note.  .   87 

part  payment  by  joint  debtor— revival  of  debt-  • 90 

conflict   of   laws.   .    ^^ 

payment  of— effect  on  surety 94 

liability  of  payment.   . 96 

application  of  payments.  .   98,  99 

alteration  of.   .  .    104 

change  of  date.  .  .   105 

changing  amount.  .  .   106 


Index.  569 

BILLS  AND  'i^OTES— Continued.  Sec. 

change  of  the  rate  of  interest 107 

changing  place  of  payment 108 

changing  identity  of  note 109 

addition  of  surety  to  a  note 110 

partial  payment  of,  as  consideration  for  extension  of  time 114 

payable  in  the  future — extension  of  time — rights  of  surety ••..  116 

certainty  of  extension  of  time 119 

what  is  a  promise  to  extend  time  of  payment 121 

acceptance  of  new  note  by  creditor — effect  on  surety 122 

taking  as  collateral  security — effect  on  surety 123 

taking  judgment  against  one  of  several  makers 124 

fraud  in  the  extension  of  time — effect  on  surety 125 

when  note  must  be  presented  to  the  administrator  or  executor-  •  128 

disaffirmance  by  infant — return  of  consideration 135 

payment    of — subrogation    of    surety 154 

payment  by  surety  of  a  surety 165 

payment  by  one  joint  debtor 166 

surety  voluntarily  paying.  .    177 

payment  by  surety — assignment 178 

taken  by  creditor  from  one  partner 179 

payment  by  surety's  note.  .   180 

payment  by  accommodation  indorser.   186 

alteration  of — payment  and  contribution 194 

payment  by  note — right  to  contribution 195 

payment  by  co-surety — right  to  contribution 196 

purchasing  note  of  principal  by  one  co-surety  at  a  discount — 

effect 198 

contribution  of  surety  of  a  surety  for  payment 199 

substitution  of  new  note — right  to  contribute 204 

j             rights   of   accommodation    indorsers 206 

parol   evidence  to  identify  surety 210 

parties  to — legal  effect  of  indorsement 210 

giving  note  by  administrator 246 

accord  and  satisfaction  of  officer  by  giving  his  note .  295 

left  in  hands  of  justice  of  the  peace 334 

holder  of — notary's  certificate 336 

bank  receiving — selecting  notary  to  protest — liability 336 

indorsement  before  and  after  delivery 347 

guaranty  of — illegal.  .  .   -  •  351 

guaranty  of — negotiability.  .  .  357 

guaranty  of  collection.  .  .   359 

changing  debt  into  notes — effect  on  guarantor 362 

assignee's  rights 364 

guaranty  of — one  signature  forged.   366 

executing  and  indorsing  for  third  party — statute  of  frauds 389 

assignment  of 390 


570  Index. 

BLANKS,  Sec. 

a  blank  piece  of  paper  signed  as  a  bond — effect 52 

filling  of 56 

filling  blanks  in  notes 57 

bond  signed  in  blank  by  surety 298 

signing  note  in   blank 347 

BONDS, 

successive  bonds 9 

of  public  officer — national  bank  as  surety 29 

delivery  in   escrow 50 

surety  signing  on  condition 51 

not  signed  by  principal.  .  52 

surety  's  name  not  in  the  body  of  the  bond 53 

principal's  name  in  body  of  the  bond,  but  not  subscribed 54 

alteration  of — effect 55 

filling  blanks  of — surety's  liability 56 

surety  estopped  by  recitals  in 59 

estopped  to  deny  validity  of 62 

attacking  of,  in  collateral  proceedings 63 

where  contract  made  part  of 67a 

liability  of  surety — term 70,     71 

surety  liable  only  for  penalty.   74 

measure  of  surety's  liability 75 

death  of  surety — effect.  .   85 

contractor's  bonds 112,  113 

taking  second  bond  as  collateral  security — effect  on  surety 123 

right  of  contribution  on  successive  bonds 203 

liability  of  surety  on  successive  bonds 209 

attachment  bonds — formality.  .  .  213 

exoneration  of  surety  on  attachment  bond 214 

non-suit  in  attachment — effect  on  surety 215 

redelivery  bond — bankruptcy  of  principal.   216 

amendment  of  proceedings.  .   217 

bringing   in    new   parties 218 

liability  of  surety  for  trespass  of  officer 219 

different  bonds — right  of  surety  as  to  attached  property 220 

void  bond  in  attachment 221 

damages  on  breach  of 222 

judgment  on  the  bond — liability  of  surety 223 

appeal  bonds — discharge  of  sureties 224 

appeal  bond — judgment  affirmed  in  another  court 225 

change  of  issue  on  appeal 226 

Increase  of  claim  on  appeal 227 

agreement  of  litigants 228 

successive   appeal   bonds.   .    229 

provision  for   indemnity 230 


Index.  571 

BONDS — Continued.  Sec. 

liability   on   indemnity   bonds 231 

injunction  bonds — liability  of  surety 232 

suit  on  injunction  bond.   233 

injunction  bonds — liability  of  surety.   234 

what  law  governs  injunction  bond 235 

liability  of  surety  on  replevin  bond 238 

breach  of  replevin  bond — discontinuance  of  suit 239 

varying  the  terms  in  replevin 241 

when  suit  lies  on  executor's  or  administrator's  bond 242 

administrator's  bond — income  from  real  estate 244 

liability  of  surety  on  extra-territorial  acts  of  principal 245 

surety  liable  only  for  official  acts 246 

giving  new  bond.  .  .    247 

liability  of  discharge  surety.    248 

sureties  on  joint  bonds 249 

allowance  to  intestate's   widow   by  administrator — liability   of 

surety 250 

surety's  general  liability  on  administrator's  bond 253 

liability  of  surety — different  bonds 254 

principal  acting  in  official  capacity 255 

failure  of  administrator  to  return  inventory •  256 

release  of  surety  on  administrator's  bond 257 

when  right  of  action  accrues  on  administrator's  bond 258 

general   liability   of   guardian's   sureties 259 

giving  additional  bond  by  guardian 260 

guardian  selling  real  estate — giving  new  bond 261 

discharge  of  surety — guardian's  bond 262 

termination  of  surety's  liability — guardian's  bond 263 

when  action  can  be  brought  on  guardian's  bond 264 

judgment  on  guardian's  bond — estoppel  of  surety 265 

estoppel  of  surety  by  recitals 266 

liability   of   joint   guardians 267 

joint  bond  of  guardians.   .    268 

extent  of  surety's  liability  on  guardian's  bond 269 

recovery  against  surety.  .    270 

liability  of  sureties   on   receiver's 271 

right  of  action  against  sureties  on  receiver's  bond 272 

of  receiver,  for  future  acts 273 

of  surety  on  receiver's  bond  for  funds 274 

new  bonds — liability  of  surety.   275 

surety's  liability  on  receiver's  bond 276 

liability  of  surety  on  assignee's  bond 277 

extent  of  surety's  liability  on  assignee's  bond 278 

assignee  giving  new  bond.    279 

default  of  assignee 280 

discharge  of  surety 281 


572  Index. 

BONDS— Continued.  Sbxj. 

duration  of  surety's  liability  on  private  official  bonds 282 

continuing  liability  of  surety  on  private  official  bonds 283 

restricting  surety's  liability  by  recitals  in  bond 284 

construction,   as   to    surety.    285 

surety  cannot  be  bound  beyond  his  contract 286 

discharge  of  surety  by  fraud 287 

application  for  construed  together 287a,  445 

covering  prior  and  subsequent  defaults 288 

principal   his  own   successor.    28» 

continuing  principal  in  office  after  known  defaults 290 

delinquent  obligee 291 

failure  to  discharge  delinquent.    292 

failure  to  notify  surety  of  default 293 

covenant  not  to  sue  on 294 

accord  and  satisfaction  .   295 

notice  of  surety's   withdrawal 296 

surety  discharged  by  acts  of  obligee 297 

action  on  the  bond.  .    298 

sureties  concluded  by  recitals  in  officer's  bond 299 

surety's  liability  for  loss  of  money  by  officer 300 

liability  of  surety  on  official 301 

liability  of  surety  on  prior  defaults 302 

presumption  as  to  sureties  on  second  bond 303 

de  facto  official  bonds.    304 

officer  holding  over 305 

death  of  officer.  .  .   306 

money  used  to  cover  previous  delinquencies 307 

giving  second  bond  in  same  term.  308 

giving  bond  without  statutory  authority 309 

general    and    special    bonds 310 

liable    for    official    acts 311 

subsequently  imposed  duties    312 

subsequently  imposed  duties  by  the  legislature 313 

the  State  is  not  responsible  for  its  officers 314 

forgery    of   prior   surety's    name 315 

money  lost  by   principal ^ 316 

depositing  public  money  in  bank 317 

making  profits  on  public  funds 318 

interest  recovered   after  breach 319 

surety's  liability  for  penalty .   320 

estoppel   by  judgment   against  officer. 321 

of  sheriffs  and  constable.    322 

scope  of  liability — constables.  .   323 

levy   on   wrong  property 324 

officer's  liability — ministerial   duties.   .    325 

officer's  duty  to  State  and  to  persons 326 


Index.  573 

BONDS — Continued.  Sec. 

limit  of  surety's  liability.    327 

liability  of  surety  after  term  expires 328 

sureties'  liability  on  bonds  of  clerks 329 

compensation  of  clerk.  .   330 

failure  of  clerk  to  pay  over 331 

money    paid   into   court 332 

delinquencies  of  clerks.  .   333 

sureties  of  justice  of  the  peace 334 

sureties  of  police  officer.    335 

sureties  of  notary   public. 336 

of   tax  collector.    .    337 

subrogation  under.  .  .   338 

assignability  of 357 

not  in  form — common  law  bond.    405 

definition   of  bail   bond.    407 

extent  of  bail's  liability.  417 

giving  new  bond — liability  of  bail 425 

of  foreign  company  need  not  state  authority  to  do  business-  •  •  •  438 


BOOKKEEPER, 

sureties  for  released n,     72 

using  the  bank's  money 285 


BREWERY  COMPANY, 

as  surety  or  guarantor  30 


BROKER, 

in  del  credere 394 

arrest  of — bail 404 


BUILDING  CONTRACTS, 

liability  of  surety.  .  .  112 

consideration  of 112 

surety  changed  by  release  of 112a 

where  change  authorized.  .   112b 

permissive   and   immaterial   variations. 112c 

payment — certificate  of  architect  or  other  person 112d 

payment  generally.  .  .  .   112e 

acceptance  by  architect — certificate.   .    112f 

extension  of  time — effect.  .  .   113 

items  of  credit   n,  186 

for  school  building — injunction  against   n,  232 

surety  company  released  by  change  in 442 


574  Index. 

BURDEN  OF  PROOF,  Sec. 

authority   of   partner    n,    26 

act  ultra  vires    30 

that  one  signed  as  surety n,  171 

extension   of   time.   .    113b 

why  money  not  turned  over  to  successor  in  ofiBce n30l 

C. 

CASHIER, 

duration  of  liability  on  bond  of  71,    72 

transcending  his  powers — effect  as  to  sureties'  liability 285 

of  bank — bond  of n,     28 

increase  of  capital  stock  of  bank — surety's  liability 286 

joint  action   against  cashier  and  sureties 298 

controlled  by  recitals  in  bond 29& 

CERTIFICATE, 

of  architect  or  other  person — building  contracts 112d,  112f 

CHANGE  IN  CONTRACT, 

see  "Alterations;   Contract." 

CHARTER, 

extending  charter  of  bank — effect  on  surety's  liability 72 

forfeiture   of— liability   of  surety.    29T 

CITY  CLERK'S  BOND, 

what  covered  by nSOl 

CLERK, 

of  county — unofficial  actB>— liability.  .   320 

bond   of — surety's  liability.   .    ., 329 

employment  guarantied = 345 

compensation  of.   .  .    330 

failure  to  pay  over  to  successor 331 

money  paid  into  court.  .   332 

delinquencies  of 333 

CO-GUARANTOR, 

release  of 369 

payment  by  one  co-guarantor 372 

COLLATERAL  PROCEEDINGS, 

attacking  bonds 63 


Index.  575> 

COLLATERAL  SECURITY,  Sec. 

taking  collateral  security  by  creditor — effect  on  surety 123 

surety  entitled  to.  .  .   130 

creditor  must  collect    132 

substitution   of.  .   .    137 

when  creditor  must  resort  to  collaterals 14^ 

in  hands  of  surety — application 189 

COLLATERAL  UNDERTAKING, 

of   surety   or   guarantor 41 

of  principal — effect 104 

by  contractor  and  principal 113 

COLLECTION, 

guaranty  of.  .  .   359 

due  diligence  of  guarantee 360 

COLLECTOR, 

sureties  for  released <. n,    72 

misappropriation  of  taxes   = 307 

special  and  general  bond 312 

extending  time  to  pay  taxes  to 313 

liability  of  sureties 337 

employment  guarantied 345 

COLLECTOR  OF  INTERNAL  REVENUE, 

liability  on  bond  of  » n,     30 

COMMERCIAL  PAPER, 

see  "  Bills  and  Notes." 

COMMMISSION, 

securing  of  as  consideration  for  guaranty 377 

COMPENSATION, 

of  clerk — excess 330^ 

CONCEALMENT,  ~' 

of  facts 140 

diligence  of  surety 141 

facts  not  connected  with  the  contract 142 

facts   developed   subsequent  to  the  contract 1 43 

of  obligee — effect  on  surety.    287 

of  principal's  prior  defaults. 388 

when  negligence  amounts  to.    191 

failure  to  notify  surety  of  default 293 

see  "  Fraud." 


576  Index. 

CONCURRENT  CONTRACTS,  Sec. 

indorsing  note  before  and  after  execution 36 

to   bind   the   surety. 39 

see  "  Contracts." 

CONDITION, 

delivery  in  escrow.   .    50 

wrongful  delivery  by  principal.    51 

surety  signing  upon 129 

CONDITIONAL  DELIVERY, 

of  instrument   50,  51 

CONDITIONAL  GUARANTY,  < 

definition  of   339  , 

terms  of 340 

necessity  of  notice  in  absolute  guaranty 348 

guaranty  of  payment.   .  .    350 

notice  to  guarantor.   .    352 

notice  of  default 353 

continuing  guaranty.  .  .   354 

letters  of  credit  as  a  continuing  guaranty 355 

when  guarantor  is  liable  on  absolute  guaranty 359 

CONDITION  PRECEDENT, 

institution  of  suit  against  clerk 331 

when  not  fulfilled   350 

as  to  guarantee's  bringing  suit 360 

CONFLICT  OF  LAWS', 

governs  suretyship  like  other  contracts 93 

CONSEQUENTIAL  DAMAGES, 

recovery  of   i 184 

CONSIDERATION, 

what  is   35 

for  indorsing  note  before  and  after  execution 36 

surrender  of  old  note  for  new  37 

of  suretyship  must  be  legal  38 

when  it  supports  the  surety's  contract  39 

presumption  of   39 

question  of,  in  suretyship 39 

when  surety's  promise  is 40 

executed  consideration    40 

moral  obligation   40 


Index.  677 

OONSIDERATION— Con^Tmed.  SBo. 

when  new  consideration  is  necessary 40,     41 

for  mortgage  to  indemnify  sureties n,     41 

for  extension  of  time  42,  43,     46 

promise  to  pay  debt  of  another — notice  of  acceptance  of  offer  . .     45 

for  extension  of  time  46,  47,     48 

in  building  contracts  112 

for  extension  of  time   113 

what  is,  for  extension  of  time 114 

usury  as  a  consideration  for  extension  of  time 115 

disaffirmance  of  contract — return  of  considei-ation 135 

payment  of  in  installments 138 

of  indemnity  contract  189 

payment  of  void  note — right  of  contribution  194 

for  bond  213 

illegal,  of  bank  as  to  deposits  301 

of  guai-anty 341 

executory  consideration  in  guaranty 342 

moral  obligation  as^ — in  guaranty  343 

guaranties  are  of  two  kinds   344 

guaranties,  where  consideration  is  entire  345 

guaranty  when  consideration  passes  at  different  times 346 

want  of  as  to  one  of  two  guarantors 361 

want  of — guaranty  contracts 362 

for  extension  of  time 363 

failure  of  in  guaranty  366 

to  bring  promise  under  the  statute  of  frauds 375 

new  consideration  in  guaranty 377 

for  promise  in  guaranty  378 

original  consideration  in  guaranty  381 

oral  promise  to  indemnify   382 

for  indemnity  contracts   383 

what  is  a  sufficient  consideration  to  pay  debt  of  another 384 

for  release  of  lien — statute  of  frauds  392 

promise  to  pay  debt  of  another  •  393 

del  credere  contracts    394 

inuring  to  the  benefit  of  the  promisor 396 

CONSOLIDATION, 

of  corporations! — liability  of  surety 282 

CONSTAJBLES, 

see  "  Sheriffs  and  Constables." 

CONSTRUCTION, 

of  contract — at  law   67 

where  bond  makes  contract  part  thereof 67a 

of  contract — in  equity   68 

37 


578  Index. 

CONSTRUCTION— Cow  (iMwerf.  Sec. 

of  joint  obligations  as  several  86 

of  strictissimi  juris 112 

of  attachment  proceedings 217 

of  surety's  liability  on  injunction  bond 232 

of  law — injunction  bond    236 

of  surety's  contract  as  to  time 285 

of  surety's  contract  on  collector's  bond 337 

of  a  guaranty  339 

of  indorsement    347 

of  guaranty  356 

release  of   co-guarantor — effect    369 

lex  loci  contractus  governs   370 

among  bail   415 

CONSUL  GENERAL, 

bond  of  strictly  construed  n,  301 

CONTRACT, 

suretyship  need  not  appear  on  face  of n,  171 

to  pay  another  to  act  as  surety 2b 

of  guarantor  4 

of  surety    , 4 

of  suretyship — how  created    5 

when  joint — who  are  principals  22 

of   infants — voidable    24 

of  insane  persons    25 

of  suretyship  by  partners   26 

by   corporations    28 

by  national  banks    29 

ultra  vires   contracts    30 

of  principal   under   duress    33 

consideration    35 

between  principal  and  surety — consideration  35 

illegality  of  consideration    38 

to  bind  the  surety   39 

to    forbear    44 

place  of  signature 48a 

delivery  of  49 

Sunday  contract    49 

alteration  of  written  contracts — effect 55 

extent  of  surety's  contract 66 

construction — at  law   67 

made  part  of  the  bond 67a 

construction  of  contract — in  equity  68 

interpretation  of   70,  71,  72 

construing  joint  obligation  as  several  86 

change  in  principal's  contract  100 


Index.  579 

CONTRACT— CoHiinited.  Sec, 

destroying  identity  of    109 

building  contract — liability  of  surety   112 

of  extension — valid  when  121 

disaffirmance  of — return  of  consideration   135 

where  the  law  enters  into  161 

taking  effect — between  surety  and  principal  174 

between  surety  and  principal  186 

of  indemnity — consideration  of   189 

for   bond    213 

bond  and  application  for  construed  together 287a,  445 

covenant  not  to  sue    294 

accord  and  satisfaction   295 

change  in — bonds  of  private  officers  and  agents  297a 

of  the  state   313 

of  guaranty    339 

for  indorsement 347 

of   guarantor    348 

guaranty  of  payment  349 

conditional    guaranty    350 

guaranty  of  illegal  contract 351 

construction  of  guaranty  35ft 

assignment  of  guaranty 357 

under  seal — negotiability  of   358 

change  of — discharge  of  guarantor   362 

for  extension  of  time — effect  on  guarantor   363 

failure  of  consideration  in  guaranty  366 

foreign  corporation  not  licensed  is  void 370 

lex  loci  contractus  governs 370 

disability  of  principal  debtor  in  guaranty  376 

third  party  not  liable  in  guaranty  379 

original  consideration  in  guaranty  381 

oral  promise  to  indemnify  382 

indemnity  contracts  in  general 383 

what  is  a  sufficient  consideration  to  pay  debt  of  another 384 

of  novation — statute  of  frauds   385 

collateral    contracts    386 

whether  within  the  statute  of  frauds 388 

of  contractor — payable  by  another   391 

relinquishment  of  lien   392 

del  credere  contracts 394 

to  whom  promise  must  be  made 395 

for  the  benefit  of  the  promisor  396 

special  promise — release  of  original  debtor  397 

sale  of  goods^ — liability  of  third  person  398 

joint   liability    399 

oral — insurance   400 

to  answer  for  the  torts  of  another 401 


580  Index. 

CO'STRACT— Continued.  Sec. 

implied  to  indemnify  bail   415 

express  contract  of  indemnity  to  bail 416 

of  surety  company — construction  of 442 

of  surety  company  similar  to  insurance  contract 443,  444 

see  "Alterations;   Consideration;"  "Execution  of  Contract." 

CONTRACTOR, 

not  liable  for  sub-contractor's  employees 79 

payment  of  installments  in  adv^ance  103 

liability  of  112 

paying  in  advance   138 

agreeing  to  pay  debt  of 391 

see  "Building  Contracts;  Contract." 

CONTRIBUTION, 

of  co-sureties    7,  8 

two  sets  of  sureties  9 

liability  of  subsequent  signer  10 

rights  of  surety  of  a  surety   165 

right  of  co-surety  to   178 

right  of — founded  upon  equity 194 

right  to  generally  194a 

right  not  subject  to  judicial  control  194b 

accommodation  and  compensated  sureties   194c 

co-surety  paying  by  note — right  to  contribution 195 

right  to  enforce  at  law   196 

enforcement  in  equity  197 

by  surety  of  a  surety  199 

liability  to  contribute  is  several  200 

as  to  co-surety's  estate 201 

remedy  of  co-surety  for,  before  payment 202 

right  of,  under  different  instrument  203 

obligation  must  be  the  same 204 

when  co-surety  limits  his  liability 205 

of   accommodation   indorser    206 

sureties  in  legal  proceedings 207 

indemnity  to  one  surety  208 

as  to  successive  bonds  209 

parol  evidence  to  identify  co-surety  210 

running  of  the  statute  of  limitations  211 

bankruptcy  of  co-surety   212 

when  in  an  inverse  order 260 

-  1  •      — 

CONVERSATIONS, 

evidence  of   n,    51 


Index.  581 

CONVEYANCES,  Sec. 

fraudulent  conveyance  by  principal — rights  of  surety 160 

surety  setting  aside  fraudulent  conveyance  of  principal 193 

CORONERS, 

liability  when  acting  as  sheriff 324 

CORPORATIONS, 

rights  to  contracts  as  sureties 28 

power  of  officers  of 28 

ultra  vires  acts  of   29 

powers  of  national  banks   29 

implied  power  to  become  sureties  31 

consideration — ultra  vires  contracts   35 

when  surety  cannot  deny  incorporation  of 61 

appointment  of  agent — duration  of  liability   282 

restricting  sureties'  liability  by  recitals  in  bond 284 

increase  of  capital  stock 286 

continuing  their  agent  in  office  after  defaults 290 

notice  of  surety's  withdrawal  from  bond  of  officer 296 

acts  of  corporation  may  discharge  surety  on  officer's  bond  •  ■  ■  •  297 

agent  of — loss  of  money   300 

dissolution  releases  guarantor  361 

COSTS, 

an  indefinite  suretyship  extends  to  all  accessories',  such  as  costs 

and  the  like • 76 

when  surety  may  recover  from  principal  183 

sureties  agreeing  to  pay   321 

wrongfully  withdrawn  by  justice 334 

verbal  promise  to  pay 384 

liability  of  bail    405 

bail  in  civil  cases   407 

indemnity  to  bail   416 

follow  the  judgment — bail    418 

after  forfeiture    435 

CO-SURETY, 

who  is    3 

presumption  as  to   n,      3 

obligation  of .* 7 

in  joint  contracts   22 

release  of   133 

notice  by  one  to  creditor  to  sue 145 

payment  of  debt  by — rights  of  subrogation 166 

rights  of,  to  contribution    178 

right  of — founded  on  equity   194 


582  Index.  ' 

CO-STTKErrY— Continued.  Seo. 

right  to  contribution  generally   194a 

right  not  subject  to  judicial  control   194b 

accommodation  and  compensated  sureties  194c 

paying  debt  by  note — right  of  contribution  195 

enforcement  of  contribution  at  law  196 

enforcement  of  contribution  in  equity   197 

cannot  speculate  to  the  injury  of  his  co-surety  198 

liability  to  contribute  is  several  200 

liability  of  surety's  estate  to  contribution  201 

remedy  of,  before  payment  202 

right  of  contribution  under  different  instruments    203 

obligation  must  be  the  same  to  create  contribution  204 

may   limit   liability    205 

rights  of  accommodation  indorsers 206 

in  legal  proceedings — contribution  of 207 

Indemnity  to  one  surety  208 

contribution  on  successive  bonds' 209 

parol  e\id6nce  to  identify  a  co-surety  210 

running  of  the  statute  of  limitations 211 

bankruptcy  of — right  to  contribute 212 

COUNTY  CLAIMS, 

failure  to  pay   n,  323 

COUNTY  CLERK, 

liability  on  bond  of n,  301 

COUNTY  JUDGE, 

liability  on  bond  of n,  301 

COUNTY  TREASURER, 

liability  on  bond  of  * n,  301 

COURT, 

see  "  Jurisdiction." 

COVENANT, 

not  to  sue  one  of  two  or  more  joint  debtors — effect 120 

express  covenant  not  to  sue — may  be  broken — effect 121 

not  to  sue  one  surety 294 

CREDITOR, 

may  be  compelled  to  bring  suit 145 

effect  of  notice  to  collect  debt 146 

promise  of  to  look  to  principal  only   147 

informing  surety  debt  is  paid  148 


Index.  583 

CREDITOR— Continued.  Sec. 

may  be  compelled  to  resort  to  security  149 

subrogation  of  to  surety's  securities  151 

subrogation  of  surety  to  rights  of 152 

remedies  of   171 

D. 

DAMAGES', 

against  liability  65 

measure  of  surety's  liability  75 

surety  is  liable  for  liquidated  damages  76 

when  must  show  damages  before  bringing  suit  182 

when  surety  may  recover  costs  and  interest 183 

when  surety  can  recover  consequential   184 

in  attachment — breach  of  bond 222 

in  indemnity  bonds  230 

such  as  may  be  awarded   n,  232 

value  of  property  as   n,  238 

"  fair  market  value  "  n,  238 

liability  of  sureties  for  235 

discontinuance  of  replevin  suit  • 239 

joint  guardian — suit  against  co-guardian  267 

when  sureties  have  agreed  to  pay 321 

surety's  liability  for   327 

resulting  in  taking  insufficient  appeal  bond  333 

by  justice  of  the  peace 334 

resulting  from  notary's  wrong  336 

see  "  Liability." 

BATE, 

change  of — effect  on  surety • 105 

of  surety's  discharge  on  guardian's  bond 262 

running  of  the  statute  of  limitations — guardian's  account 263 

of  indorsement    347 

DEATH, 

of  surety — effect 84,  85 

of  principal — effect    172 

of  co-surety — right  of  contribution  against  estate 201 

of  principal  on  appeal   226 

of  executor  or  administrator 242 

of  joint   administrator    249 

of  guardian    259 

of  surety  on  guardian's  bond  263 

of  public  officer    306 

notice  of,  termination  of  guaranty  344 

continuing  guaranty — termination  of  346 

of  guarantor — effect  345 

of  principal,  release  of  bail  412 


584  Index. 

DEBT,  Sec. 

whether  obligation  of  surety  or  indorser  is  a  debt 6 

reduced  to  judgment — relation  between  surety  and  principal  ...     64 

revival    of    89 

pre-existing,  as  consideration  in  guaranty 342 

DECREE, 

for  deficiency — joint  debtors  124 

of  court  against  receiver — estoppel  of  surety 273 

estoppel  of  surety — assignee 278 

DE  FACTO  OFFICER, 

liability  of  his  sureties  304 

DEFALCATION, 

of  principal — known  to  obligee 127 

see  "  Defaults." 

DEFAULTS, 

judgment  by  against  principal  65 

surety's  liability  for  past  defaults  of  principal 69 

of  principal — surety's  liability   75 

of  principal — notice  to  surety    88 

of  principal — known  to  obligee — effect  on  surety 127 

notice  of  generally 144a 

of  principal — payment  by  surety  177 

of  executor  or  administrator,  when  a  breach 242 

of  assignee    280 

prior  defaults  of  principal    288 

continuing  principal  in  office  after  known  defaults 290 

failure  to  discharge  principal  for  defaults 291,  292 

failure  to  notify  surety  of 293 

liability  of  surety  for  prior  defaults  302 

of  public  officer,  must  be  official       311 

of  principal — notice  to  guarantor  348 

notice  of,  to  guarantor 352 

notice  of — how  given    353 

waiver  by  agent  of  company  of  notice  of  n,  446 

waiver  by  surety  company  of  provision  as  to  notice  of 448 

DEFINITION, 

bail    402 

co-surety   3 

"  guarantor  "  and  "  surety  "  construed  3a 

guaranty    339 

mainpernors    403 

principal    1 

surety   2 

surety  for  the  peace  n,      2 

suretyship    n,      Z 


Index.  585 

DEL  CREDEIRE,  Sec. 

under  statute  of  frauds 394 

DELIVERY, 

of  note  after  execution — subsequent  signing  by  surety — consid- 
eration      36 

of  contract    49 

to  one  of  several  obligees   49 

in  escrow  50 

wrongful  delivery  by  principal   51 

of  imperfect-  instrument  52 

of  notice  to  creditor  to  sue 145 

waiving — delivery  of  property  in  attachment  214 

of  note  before  and  after  indorsement 347 

of  principal  by  bail  to  proper  oflficer 421 

DEVASTAVIT, 

by  administrator — right  of  action  against  surety  258 

DEVISEE, 

executor  as^-liability  of  surety  24& 

DILIGENCE, 

of  surety  as  to  nature  of  obligation 141 

what  is  due  diligence — guaranty  36ft 

DISABILITY, 

of  principal — effect    92 

conflict  of  laws   93 

of  principal — effect  on  surety   135 

of  principal — liability  of  surety  190 

of  principal  debtor  in  guaranty  376 

of  third  party  in  guaranty   379 

DISAFFIRMANCE, 

of  contract  after  disability  of  party  is  removed — effect 135 

DISCHARGE, 

of  principal — effect  on  surety  92 

of  surety  generally   93a 

of  surety    94 

after  judgment — rights  of  surety 95 

legality  of  payment  96 

application  of  payments   97 

application  of  payment  by  law 98 

note  payable  to  bank — application  of  debtor's  deposit 99 

change  in  the  principal's  contract.   lOO 

when  the  surety  is  not  discharged  by  change  of  contract 101 

alteration  of  the  instrument  102 


586  Index. 

DISCHARGE— Continued.  Sec. 

material  alteration  103 

alteration  of  commercial  instruments  104 

change  of  date    105 

alteration  of  amount   106 

alteration  of  the  note  as  to  interest  107 

change  of  place  of  payment 108 

destroying  the  identity  of  the  contract  109 

addition  of  surety  to  a  note  110 

changing  lease  Ill 

building  conracts  112 

extension  of  time  of  payment 113 

consideration    114 

usurious  contracts   115 

reserving  remedy    116 

extension  of  time  117 

waiver   of    118 

extension  for  a  definite  time  119 

giving  time  to  one  of  tvpo  or  more  sureties 120 

what  is  an  extension  of  time  121 

accepting  new  note   122 

taking  collateral  security    123 

personal  judgment  for  deficiency  in  foreclosure 124 

fraud — extension  of  time  125 

fraud  to  induce  surety  to  sign  contract 126 

notice  to  creditors  of  principal  debtor's  dishonesty 127 

by  negligence  of  creditor • 128 

surety  signing  upon  condition   129 

creditor  surrendering  security  130 

releasing  attached  property 131 

creditor  failing  to  apply  securities  132 

by  release  of  co-surety  133 

failure  of  creditor  to  sue  principal 134 

disaffirmance  of  contract  by  principal 135 

fraud  upon  the  principal   136 

substitution  of  securities 137 

payment  of  consideration  in  installments 138 

tender  of  payment 139 

parol  promise  of  creditor  to  look  to  principal  only 147 

creditor  informing  surety  that  the  debt  is  paid 148 

surety  discharged  by  acts  of  the  creditor  150 

defense  of  surety   170 

of  co-surety  in  bankruptcy — effect  on  contribution • 212 

of  surety  on  attachment  bond  • 213 

exoneration  of  surety.  .    » 214 

of  surety  on  administrator's  bond 257 

of  surety  on  guardian's  bond 262 

of  sureties — giving  new  bond  by  receiver 275 


XNDEX. 


587 


mSCHARGE— Continued.  Sec. 

of  assignee's  sureties 280 

of  surety  by  fraud 287 

giving  second  bond    308 

of  guarantor  for  want  of  notice  of  default 352 

of  guarantor   360 

of  guarantor  by  negligence  of  guarantee 361 

of  guarantor  by  change  in  the  principal  contract  362 

of  guarantor  by  extension  of  time  363 

of  guarantor  by  negligence  of  guarantee  364 

of  guarantor  by  fraud  and  duress  of  guarantee  365 

of  bail    406 

DISHONESTY, 

of  principal — known  to  obligee 127 

as  to  concealments   141 

concealment  of  facts   143 

of  principal  known  to  obligee  290 

DISSOLUTION, 

of  partnership,  see  "  Partnership." 

DRAFTS, 

acceptor  is  principal   ' 15 

oral  promise  to  make — statute  of  frauds  389 

see  "  Bills  and  Notes." 

DURESS, 

of  principal  32 

effect  on  surety   32,     92 

personal  to  the  party  under  it  136 

by  guarantee — effect    365 

in  obtaining  guaranty  376 

E. 

EMBEZZLEMENT, 

contract  not  to  prosecute — illegality  of  consideration  38 

by  officer — concealment  of  by  obligee 292 

of  officer  on  general  bond  312 

EMPLOYEE, 

see  "  Private  Officers  and  Agents." 

EMPLOYMENT, 

changing  employment — liability  of  surety  72 

additional    employment    79 

default  of  principal  in  88 

dishonesty  of  creditor  143 

guarantied — liability    345 

see  "Private  Officers;  Private  Official  Bonds." 


588  Index. 

ENLISTMENT,  S^c. 

of  principal — exoneration   of   bail    4 

of  principal — liability  of  bail   431 

EQUITABLE  CONVERSION, 

by  administrator  or  executor — liability  of  surety  244 

EQUITY, 

surety's  defense  in  I'^O 

relief  of  surety  in  193 

enforcing  rights  of  co-sureties  in   197 

ERASURE, 

of  forged  surety's  name   315 

ESCAPE, 

when  sheriff  is  liable  323 

of  principal  after  forfeiture   424 

of   principal — re-arrest — liability    425 

ESCROW, 

delivery  of  instrument 50 

ESTATE, 

of  surety — liability  for  contribution  • 201 

ESTOPPEL, 

signature  on  condition   51 

to  set  up  forgery 78 

of  surety  to  deny  recitals  in  the  instrument 59 

to    deny    validity     38,  59a 

to  deny  valid  appointment  of  principal 60 

to   deny  incorporation  of   corporate   bodies   with   whom   their 

principal    deals    61 

to  deny  court's  jurisdiction    62 

attaching  bond  in  collateral  proceedings 63 

by  judgment   65 

statutory  bond   67b 

of  creditor  to  collect  from  surety  148 

of  surety  by  judgment  against  his  principal  237,  238,  243 

to  deny  validity  of  appointment  of  principal   257 

to  deny  will  duly  probated 257 

settlement  of  guardian  with  successor   n,  263 

of  surety  of  guardian  by  judgment 265 

of  surety  by  recitals  in  bond 266 

of  surety  on   assignee's   bond. 278 

to  deny  eligibility  of  principal  for  oflBce. n,  301 


Index.     '  589 

ESTOPPEI^-Oon^inued.  Sec. 

of  surety  on  de  facto  officer's  bond 304 

of  surety  by  judgment  against  officer 321 

to  deny  principal  was  tax  collector 337 

of  foreign  surety  company. n,  441 

EVIDENCE, 

of  intention  to  sign  as  witness  48a 

of  conditions  affecting  delivery   50,     51 

of  oral  agreement  limiting  liability  77 

of  belief  that  principal  had  signed ■ 54 

judgment  against  principal  as 65 

of  conversations 51 

in  action  against  widow n,  171 

of  disposition  made  of  proceeds  of  note  n,  171 

extension  of  time — burden  of  proof 113b 

see  "  Burden  of  Proof;  Parol  Evidence,  Presumptions." 

EXECUTED  CONSIDERATION, 

to  support   a   subsequent  promise 40 

when  no  part  is  executory 41 

see  "  Consideration." 

EXECUTED  CONTRACT, 

when  the  consideration  is  executed  and  not  executory 40,    41 

see  "  Contract." 

EXECUTION, 

failure  to  file  as  a  release .n,  128 

taking   debtor's   property — effect.    .    131 

release  of  levy  of — benefiting  surety 137 

levy  on   realty.   .   .    224 

levy  on  exempt  property.   231 

levied  on  exempt  property.  .  324 

failure  of  clerk  to  issue.    333 

EXECUTION  OP  CONTRACT, 

when  principal  fails  to  execute  contract — effect 52 

surety  signing  with  expectation  of  others  signing 52 

surety's  name  not  appearing  in  body  of  the  bond — effect 53 

principal  not  signing.   .    54 

consideration  .  .  .  .    35 

indorsing  notes  before  and  after  execution 36 

surrender  of  old  note  for  new  note 37 

the  consideration  must  be  legal 38 

concurrent  contracts 39 


590  Index. 

EXECUTION  OF  CO'STRACT— Continued.  SeX3. 

surety's  promise  being  the  inducement 40 

executed  contract 41 

extension  of  time — promise  of  third  person  to  pay 42 

agreement  to  forbear  for  an  indefinite  time 43 

an  agreement  must  be  made  to  forbear 44 

offer  to  become  surety  for  another 45 

extension  of  time — agreement  to  pay  interest 46 

both   parties   must   agree.    47 

extension  of  time  by  paying  interest — contrary  doctrine 48 

delivery  of  contract.   . 49 

delivery  in  escrow 50 

wrongful   delivery   by   principal.    51 

imperfect  instrument 52 

surety's  name  not  appearing  in  the  body  of  the  instrument- .  •  •  53 

principal  not  signing — name  in  the  body  of  the  instrument- •  •  54 

alteration  of  the  instrument 55 

filling  blanks — as  to  surety's  liability 56 

filling  blanks — negotiable  paper.  .  .  57 

surety  signing  as  principal.    58 

estoppel  of  surety  to  deny  recitals  in  the  instrument 59 

surety  denying  valid  appointment  of  principal 60 

right  of  surety  to  deny  incorporation  of  obligee 61 

denying  court's  jurisdiction.   .    62 

attacking   bond   in   collateral    proceedings 63 

effect  of  judgment  on  surety's  liability 64,  65 

when  surety  may  avoid.   126 

of  guaranty.    .   .    .    331,  341 

executory  consideration  in  guaranty.   342 

EXECUTORS  AND  ADMINISTRATORS, 

how  liable 23 

act  of  legislature  releasing  sureties   n,  72 

when  note  of  decedent  must  be  presented  to 128 

discharge  of — right  of  contribution  against  heirs 201 

right  of  contribution  of  sureties  on  successive  bonds 203 

liability  of  sureties  on  different  bonds  of  executor 209 

death  of  principal  on  appeal — substitution  of  administrator-  - .  226 

liability   of   their    sureties.    242 

judgment  against — conclusive  as  to  surety   n  65,  243 

income  of  real  estate — liability  for 244 

sale  of  real  estate  beyond  jurisdiction  of  court 245 

surety  liable  only  for  principal's  lawful  acts 246 

giving  new   and   additional   bond 247 

liability  of  discharged  surety.   248 

sureties  on  joint  bonds 249 

death  of  joint  principal 249 


Index.  591 

EXECUTORS  AND  ADMINISTRATORS— Oonfinued.  Sec. 

making  allowances  to  widow.  250 

being  debtor  to  the  estate 251 

common  law  rule  as  to  executor  being  debtor  to  the  estate. . . .  252 

general  liability  of  sureties.   253 

failure   to  bring  action.    n,  253 

failure  to  pay  over  money — order  of  court n,  253 

refusal  to  comply  with  judgment  of  court n,  253 

failure  to  pay  judgment  debts n,  253 

unauthorized  payment  of  claims n,  253 

same  person  administrator  and  executor  of  same  estate 254 

acting  in  fiduciary  capacity.  .    255 

failure  to  return  inventory.    256 

release  of  surety.   .    257 

estoppel  to  deny  validity  of  appointment  of  principal 257 

estoppel  to  deny  will  duly  probated 257 

when  period  of  limitations  begins  to  run 257 

must  be  accounting  before  suit  on n,  258 

as  to  continuing  guaranty.    368 

EXEMPTIONS, 

of  principal — how  determined 161 

EXEMPT  PROPERTY, 

levy  on  by   sheriff,    231,  324 

EXONERATION, 

of  bail 411 

by  performance  of  condition,    412 

of  bail  by  act  of  God 428 

of  bail  by  act  of  law 429 

of  bail  by  act  of  obligee 430 

EXPENSES, 

when  co-surety  can  collect  traveling  expenses 196 

when  co-surety  may  recover.    200 

EXTENSION  OF  TIME, 

as  consideration  to  third  party 42 

for  an  indefinite  time 43 

agreement  to  pay  interest.  .   46,     48 

mutuality  of  agreement.  .  .   47 

of  building  contracts.  .   113 

where  instrument  provides  for.    113a 

evidence — burden  of  proof.  .    113b 

of  paying  usury 115 


592  Index. 

EXTENSION  OF  Tn'[E— Continued.  Sec. 

reservation  of  remedy  against  surety 116 

without  consent  of  surety.  .    117 

to  be  valid,  must  be  certain.  .    119 

giving  time  to  one  of  two  or  more  sureties — effect 120 

what  is  a  promise  for -   121 

of  time  by  fraud  of  principal 125 

of  term  of  office  by  legislature.  305 

as  consideration  for  guaranty.    341 

discharge  of  guarantor 363 

as  a  consideration  in  guaranty 375 

EXTRADITION, 

of  principal — effect  on  bail.   427 

exoneration  of  surety  .  .   429 

P. 

FACTOR, 

in  del  credere  contracts. 39^ 

arrest  of — bail.  .  .  .   404 

FAILURE  OF  CONSIDERATION, 
see  "  Consideration." 

FALSE  ARREST, 

by  United  States  marshal > n,  323 

FATHER, 

guaranty  by  not  in  writing — void n,  374 

FEDERAL  OFFICER, 

principal  arrested  by — liability  of  bail 426 

FIDELITY  BONDS, 

see  "  Private  Officers  and  Agents." 

FIDUCIARIES, 

sureties  not  n,  224 

administrator  acting  as  such.  255 

when  executor  should  act — death  of  guarantor 368 

arrest  of — bail.  . 404 

see  "  Executors  and  Administrators;  Guardian;  Receiver." 

FIRE, 

funds  destroyed  by. 316 

FORBEARANCE, 

for  a  reasonable  time 43 

taking  new  security.  .   43 

agreement  to  borbear 44 


Index.  593 

FORBEARANCE— Continued.  Sec. 

creditor's  failure  to  sue  principal 134 

to  inform  surety  of  principal's  dishonesty 143 

as  consideration  for  guaranty 341 

of  guarantee  to  bring  suit.    360 

of  creditor — right  of  guarantor.    363 

see  "  Consideration." 

FORECLOSURE, 

taking  deficiency  judgment  against  one  joint  debtor — effect  • .  ■  124 

FOREIGN   ADMINISTRATOR, 

liability  of  surety 260 

see  "  Executors  and  Administrators." 

FOREIGN  CORPORATIONS, 

see  "  Surety  and  Guaranty  Companies." 

FOREIGN  SURETY  COMPANIES, 

statutes  as  to 438^  440 

may  execute  guardian's   bonds. n,  441 

see  "  Surety  and  Guaranty  Companies." 

FORFEITURE, 

of  bail  bond — liability 419 

effect  of  pardon 42o 

effect  of,  on  bond o.. , 433 

setting  aside.  .  . 434 

arrest  after  forfeiture.  . ...» ....... , 435 

effect  of  remission.  . .-.. 436 

FORGERY, 

when  it  releases  surety 78 

taking  a  forged  note  for  a  prior  one  secured — effect  on  surety.  125 

of  prior  surety's  name 315 

impeachment  of  sealed  contract. 341 

guaranty  of  note — names  forged 351 

FRAUD, 

notice  of,  by  obligee, 51 

construction  of  joint  obligation §6 

of  principal  unknon  to  creditor — effect  on  surety 125 

extension  of  time I25 

to  induce  surety  to  sign 126 

upon  the  principal — effect 136 

upon  the  surety 14q 

38 


594  Index. 

FRAUD — Continued.  Sec. 

concealment  of  facts 141 

fraudulent  conveyance  by  principal — rights  of  surety 160 

surety  setting  aside  sale  of  principal 193 

of  co-surety — right  to  contribution.   202 

order  of  probate  court  against  guardian — estoppel  of  surety...  265 

discharge  of  surety.  .   287 

obtaining   surety   by   fraud .,  288 

when  mere  laches  of  the  obligee  is  not 293 

of  guarantee — effect.  . 365 

in  the  execution  of  promise. 376 

arrest  for — bail 404 

of  creditor — release  of  bail.  .   411 

see  "  Concealment." 

FUNDS, 

misappropriation  of,  by  principal — surety's  liability 75 

increase  of — liability  of  surety 76 

raised  by  surety — appropriation  of 96 

joint  fund  for  payment  of  joint  debt 187 

conversion  of,  by  administrator 257 

of  surety  of  receiver  for  funds  in  his  hands 274 

making  profits  on  public  funds 318 

misappropriation  of,  by  clerk 329 

see  "  Misappropriation." 

G. 

GENERAL  AND  SPECIAL  GUARANTIES, 

distinction  of 340 

GOODS, 

transfer  of  as  consideration  for  guaranty , .  377 

sale  of — guaranty « » 398 

GRANTEE, 

of  mortgaged  premises — relation  to  mortgagee 11 

GRANTOR, 

of  mortgaged  premises  as  surety.  = 11 

subsequent  undertaking.  .  . 41 

certifying  acknowledgment  of,  who  is  absent 336 

liability  of 339- 

GUARANTEE, 

term   construed    n,  3a 

qualified  changed  to  absolute. 109 

rights  of 340 

consideration  between  parties.  .   341 


Index.  585 

GUARANTEE — Continued.  Sec. 

pre-existing   debt 342 

when  consideration  is  a  moral  obligation 343 

kinds  of  consideration 344 

when   the   consideration   is   entire 345 

when  consideration  passes  at  different  times 346 

when  acceptance  is  necessary.  .   348 

payment  to — guarantied.  .  .    349 

what  is   due   diligence  of 360 

negligence  of — discharge  of  guarantor 361 

delay  to  enforce  payment 363 

loss  of  securities — effect  on  right  of  guarantor 364 

fraud  and  duress  of 365 

death  of  guarantor,  notice 368 

accepting   instrument 369 

running  of  the  statute  of  limitations 371 

see  "  Guaranty." 

GUARANTOR, 

terms  "  guarantor  "  and  "  surety  "  construed 3a 

distinguished  from  surety.  .   4 

contract  of 4 

indorsing  note  before  and  after  execution — consideration 36 

presumption  of  consideration  for  contract 39 

of  payment  of  rent 82 

revocation  of  guaranty.  .  87 

making  a  surety  of.  .  109 

interposing  fraud  of  principal  to  avoid  payment 126 

may  impose  condition.    129 

payment  of  note — subrogation 169 

parol  evidence  to  show.    210 

rights  of.  .  .  .   340 

consideration  for  contract 341 

of  pre-existing  debt.   .    342 

moral  consideration,  when  a  consideration 343 

kinds  of  guaranty 344 

when  the  consideration  is  entire 345 

death  of— effect 34B 

when  consideration  passes  at  different  times 347 

endorsement  of,  before  and  after  delivery  of  note 347 

when  acceptance  of  guaranty  is  necessary 348 

guaranty  of  payment.  .   349 

of  illegal  note.  .   351 

notice  of  default 352 

what  is  reasonable  notice  of  default 353 

when  amount  is  limited.    354 

construction  of  his  contract.    356 

assignee  of  guaranty — rights 357 

guaranty  of  collection 359 


596  Index. 

GUARANTOR— Continued.  Sec. 

discharge  of,  by  negligence  of  guarantee 360,  361 

discharge  of  by  change  in  the  principal  contract 362 

discharge  by  extension  of  time 363 

discharge  of,  by  negligent  loss  of  securities 364 

discharge  by  fraud  and  duress 365 

of  defective  contract.  .  .    366 

revocation  of  guaranty.  .   367 

death  of.  .  .   368 

released  co-guarantor 369 

running  of  the  statute  of  limitations 371 

payment  of  debt  by.  372 

contract  under  the  statute  of  frauds 373 

when  within  the  statute  of  frauds 374 

effect  of  the  statute  of  frauds  on  contract 375 

principal   debtor   incapacitated.    .    376 

new  consideration.  .  .   377 

consideration  for  promise.  .  378 

taking  debtor's  property.  .  . 379 

third  party  incapacitated.   .    380 

original  consideration.  .  .   381 

parol  promise  to  indemnify.    382 

indemnity  contracts.  .    383 

what  is  a  sufficient  consideration  for  guaranty 384 

of  promissory  note..  .  . 390 

in  del  credere.  .  .   394 

GUARANTY, 

distinguished  from  suretyship 4 

of  payment.  .  .   4 

of  collection.  .  .   4 

of  national  banks 29 

subsequent — effect 41 

agreement  to  accept — when  necessary.  .   45 

may  cover  pre-existing  debt 69 

as  to  transfer 82 

revocation  of.  .  .  .   87 

on  condition.  .  .  . 12& 

definition  of 339 

classification  of,  as  to  nature 340 

consideration  of.  .  .  .    341 

executory  consideration  for.  .  342 

moral  obligation  as  consideration  for 343 

as  to  consideration — classes.  .  .   344 

where  consideration  is  entire.  345 

where  consideration  passes  at  different  times 346 

indorsement  of  note  before  and  after  delivery  of  note ?.47 


Index.  597 

GUARANTY— Con  finMed.  Sec. 

when  acceptance  is  necessary.  .  348 

offer  of  when  acted  on  is  binding n,  348 

in  form  of  an  "  O.  K." n,  349 

of  payment 349,  350 

of  illegal  contracts.  .  351 

construction  of.  .  .   356 

negotiability  of .- 357 

under  seal — negotiability  of.  .   358 

of  collection 359 

revocation  of — dissolution  of  partnership 361 

covers  defects   in  the  original   contract 366 

death  of  guarantor.  .   368 

lex  loci  contractus  governs 370> 

running  of  the  statute  of  limitations 371 

payment  of  verbal  guaranty.   372 

application  of  the  fourth  section  of  the  statute  of  frauds 373 

under  statute  of  frauds .  374 

effect  of  the  statue  of  frauds 375 

incapacity  of  principal  debtor 376 

new  consideration.  .  .  .   377 

consideration  for  promise 378 

parol  agreement.  .  .  .  379 

third  party  not  liable 380 

original  consideration.  .  .  .   381 

oral   promise  to  indemnify 382 

indemnity  contracts 383 

what  is  a  sufficient  consideration  to  pay  debt  of  another 384 

of  promissory  note.  .  .   390 

in  del  credere 394 

eee  "  Statute  of  Frauds." 

GUARDIAN  AND  WARD, 

administrator  acting  as  guardian — liability  of  sureties 255 

general  liability  of  surety  n87,  259 

bond  not  complying  with  statute 259 

note  surrendered  by  guardian  to  maker n,  259 

defalcation  before  execution  of  bond 259 

failure  to  comply  with  invalid  order  of  court 259 

guardian  loaning  funds  to  himself 259 

giving  additional  bond.  .    260 

selling  real  estate.  .    261 

when  surety  is  discharged.  .    262 

termination  of  surety's  liability.  .   263 

statute  of  limitations  bars  suit 263 

must  be  settlement  of  accounts  before  suit n,  263 

estoppel — settlement  with  successor n,  263 


598  Index. 

GUAHDIAN  AND  WARD— Continued.  Sec. 

when  action  arises  on  bond.   264 

judgment  against — estoppel  of  surety  n65,  265 

estoppel  of  surety  by  recitals  in  bond 266 

joint  guardians — liability.  .  .    267 

joint  bond — enforcement.   .   .    268 

extent  of  surety's  liability.  .    269 

notice  for  purposes  of  release n,     87 

revival  of  debt  by   surety.    270 

foreign  company  may  execute  bond n,  441 


H. 
HABEAS  CORPUS, 

right  of  bail  to,  for  principal  in  another  county 426 

HEIRS,  •% 

rights  of  contribution  against,    201 

HOLDING  OVER, 

officer  holding  over — liability  of  surety 305 

HUSBAND  AND  WIFE, 

wife  mortgaging  her  property  to  secure  husband's  debts 19 

husband  held  to  be  surety  for  wife n,     18 

release  of  married  woman  as  surety — effect 18 

mortgage  by — adding  wife's   name.    110 

wife  giving  note  for  pre-existing  debt 191 


I. 

IGNORANCE, 

of  co-surety's  obligation   7 

IGNORANCE  OF  THE  LAW, 

does  not  excuse  surety  or  principal 37 

ILLEGAL  CONTRACTS, 

liability  of  surety.  .  .   38 

IMPERFECT  INSTRUMENT, 

liability  of  sureties.  .    52,  53,     54 

filling  blanks 55,     56 

filling  blanks   in  notes.    57 

surety  signing  as  principal.   58 

common-law  bond 405 


Index.  599 

IMPRISONMENT.  ^^C- 

false — United  States  marshal's  bond n,  323 

release  of  person  from,  as  consideration  for  guaranty 377 

in  civil  actions — bail 404 

payment  by.  .  .  .  409 

of  principal — release  of  bail.   .    411 

suspension  of — liability  of  bail.    420 


INDEMNITY, 

right  of  surety  to. 2a 

mortgage  as  consideration  for  n,     41 

when  securities  are  given  for  indemnity  of  surety  only 151 

creditor  must  hold  securities  for  surety's  indemnity 152 

appeal   bond — rights   of   original   surety 168 

when  surety  indemnified  may  bring  action 182 

when  surety  must  take  special  indemnity 184 

right  of  surety  to  take  from  principal 189 

implied  promise  for,  by  principal 192 

to  one  co-surety.  .   208 

bonds  for 230 

liability  of  surety.  .   231 

of  surety  against  joint  guardian.  .    267 

oral  promise  to  indemnify.    382 

contracts  for  in  general 383 

of  surety — statute  of  frauds.    395 

right  of  bail  to.  .    406 

to  bail   in  criminal   action 415 

express  contract — to  bail.   .    416 

from  principal — surety  company — statute  as  to 438 


INDICTMENT, 

of  sheriff  for  neglect  326 

entering  in  succeeding  term — liability  of  bail   427 

loss  or  quashing  of — effect  of  431 


INDORSEMENT, 

of  notes  before  and  after  execution   36 

of  creditor  on  note — consideration  for  extension  of  time 46 

creditor  taking  note  with  forged  indorsement — waiver 125 

parol  evidence  to  explain  blank  indorsement 210 

before  and  after  delivery  of  note  347 

of  guaranty  on  note  357 

without   authority — guaranty    366 

of  notes  for  another — statute  of  frauds  389 

see  "  Bills  and  Notes." 


600  Index. 

INDORSEE,  SEa 

whether  obligation  of  indorser  is  a  debt 6 

accommodation  indorser — relation  of   14,  15 

of  bills  of  exchange  and  promissory  notes — liability 16 

of  notes  made  payable  to  maker — rights  of 17 

of  note  before  and  after  execution — liability   36 

not  released  by  holder  of  bill  taking  collateral  security 123 

different  from  surety   178 

cannot  recover  costs  against  the  drawer 183 

as  co-sureties — contribution   206 

parol  evidence  to  show  210 

contract  of   339 

before  and  after  delivery  of  note 347 

promising  to  indorse — statute  of  frauds  389 

see  "  Bills  and  Notes." 

INDUCEMENT. 

surety's  promise  being  the  inducement  for  the  contract — con- 
sideration    40 

when  collateral  undertaking  is  not  the  inducement 41 

of  surety  to  extend  time — effect 117 

as  consideration  in  guaranty   341 

pre-existing  debt  as  consideration 342 

for  a  promise  to  indemnify 382 

see  "  Consideration." 

INFANTS,  '        ' 

liability  as  sureties 24 

disaffirmance  of  contract — effect  135 

guaranty  of  infant's  contract  356 

guaranty  of  contract 376 

disability — guaranty  contracts   380 

INJUNCTION, 

order  of  liability  of  sureties   73 

liability  of  surety  on   232 

when  surety  is  liable 233 

when  liability  of  sureties  is  joint  and  several  231 

what  law   governs    235 

dissolution  by  series  of  orders   236 

decree  of — concludes  surety   237 

INSAN'E  PERSONS, 

contracts  of    25 

INSANITY, 

as  defense 25 

of  principal  does  not  release  bail 414 


Index.  601 

INSOLVENCY,  Sec. 

of  debtor — effect  on  surety 131 

of  parties  in  suretyship — right  to  set-off  and  recoupment 144 

of  principal — rights  of  surety  159 

payment  of  judgment  by  surety  against  principal  163 

right  of  insolvent  at  common  law  to  make  preferences 189 

insolvency  of  co-surety  vv^ho  has  paid  debt  by  his  note 195 

apportionment  of  debt  among  solvent  sureties 196 

excluding  insolvent  co-sureties  in  contribution  196,  197 

of  principal — attachment 216 

new  bond — insolvent  surety    279 

guaranty  of  collection — insolvency  of  principal  359 

when  guarantee  must  show  insolvency  of  principal  360 

discharge  of  principal — right  of  bail  408 

see  "  Bankruptcy." 

INSTALLMENTS, 

payable  in  advance — effect   67 

payment  of  rent  in  installments^ — liability  of  surety   81,  82 

payable  in  advance— building  contracts  103 

paying  in  advance   138 

when  surety  may  pay  the  debt  by  installments 176 

payment  of  debt — when  statute  of  limitations  runs 211 

agreement  that  judgment  may  be  paid  in  installments 228 

INSURANCE, 

oral  contract  of — statute  of  frauds 400 

and  surety  company  contract — similar 443,  444 

INSURER, 

surety  is   2 

INTENT, 

of  parties  to  control  67,     68 

INTEREST, 

agreement  to  pay  interest  to  extend  time  of  payment 46 

express  promise  to  pay — ^extension  of  time   48 

when  surety  is  liable  for   74,     76 

changing  rate  of — surety's  liability  107 

usurious,  as  a  consideration  for  extension  of  time 115 

taking  in  advance  for  extension  of  time — effect 121 

when  surety  may  recover  from  principal  183 

on  executor's  bond   n,  253 

for  breach  of  receiver's  bond   276 

taking,  on  bank  deposit  by  officer   ' 318 

recovered  after  breach 319 


602  Index. 

INTEREST— Continued.  Sec. 

on  penalty — official  bond  327 

guaranty  of  note  351 

agreement  to  pay  in  advance — consideration 375 

liability  of  bail    405 

bail  in  civil  cases   407 

INVENTORY, 

administrator  not  including  his  debt  to  the  estate — effect.  •251,  252 


J. 
JOINT  BONDS. 

executors  or  administrators  249 

of  guardians — liability   268 


JOINT  DEBTORS, 

part  payment  by  one  of  several  joint  debtors — effect 90 

liability  severally  and  jointly  91 

adding  signature  of  surety  to  note — effect 104 

giving  time  to  one  or  more — effect  on  the  others 120 

foreclosure — deficiency  judgment  against  one  124 

release  of  one  joint  debtor  releases  all  133 

payment  of  judgment  by  surety  163 

one  compelled  to  pay  more  than  his  share — rights  of  subroga- 
tion      167 

parol  evidence  to  show  that  one  signed  as'  surety  ■ 171 

joint  sureties  making  partial  payments   176 

pajonent  of  note  by  one  178 

when  joint  sureties  may  bring  a  joint  action  187 

right  of  co-surety  against  co-surety  196,  197 

right  of  contribution  between  211 

joint  sureties  on  appeal — liability  226 

on  successive  appeal  bonds   229 

sureties  on  joint  bonds    249 

joint  guardians — liability  267 

covenant  not  to  sue  one  surety  294 

joint  action  against  cashier  and  his  sureties  298 

indorsers  of  notes  347 

as  to  principal  and  guarantor 348 

release  of  co-guarantor   369 

revival  of  barred  debt  at  common  law  371 

joint   liability    399 

joint  and  several  liability  of  bail  419,  431 

JOINT  GUARDIANS,  '  '    '    I 

liability  of  267 


Index.  603 

JUDGMENT,  Sej. 

relation  between  surety  and  principal  after 64 

against  principal — effect  on  surety  65 

when  conclusive  on  surety   65 

discharge  of  surety  after  95 

debtors' — extending  time  of  payment  as  to  one  of  joint  debtors  120 

for  deficiency  In  foreclosure  124 

judgment  against  debtor  and  surety — release  of  debtor — effect  132 

irregularly  obtained  against  principal — right  of  surety  150 

payment  by  surety — rights  of   163 

rights   of   sureties    168 

against  the  surety  alone 171 

payment  of  joint  judgment  187 

payment  by  surety   188 

payment  by  co-surety — right  to  contribution  194 

when  co-surety  is  concluded   194 

payment  by  solvent  sureties  196 

of  non-suit  in  attachment — effect  on  surety 215 

surety  concluded  in  attachment  by  judgment  against  principal  223 

satisfaction  of — discharge  of  surety  224 

affirmance  by  another  court  225 

change  on  appeal  of  issue 226 

increase  on   appeal    227 

successive  appeals   228 

against  principal — conclusive  on  surety  237 

surety  cannot  go  behind  judgment  on  replevin  bond 238 

discontinuing   replevin   suit    239 

as  to  guardian  or  surety  264 

estoppel  of  guardian's  surety  by  265 

against  receiver — suit  against  surety   272 

against  receiver — conclusive  on  surety  273 

against  receiver — effect  on  surety   276 

estoppel  of  surety  on  assignee's  bond 278 

declared  void — effect  on  sureties 280 

estoppel  of  surety  on  official  bond  321 

on  penal  bond     327 

payment   to   clerk    332 

failure  to  enroll — liability  of  clerk 333 

neglect  of  justice  to  enter  334 

JUDICIAL  ACTS,  '  "  !  '"  I '        ', 

public  officer  not  civilly  liable  for 325,  326 

sureties  not  liable  for — justice  of  the  peace 334 

JURISDICTION,  I  ,  -|;^;^.,-T-n-^, 

of  court — denial  of,  by  surety  62 

of  law  courts  in  contribution   194 

sale  of  real  estate  outside  of   245 


604  Index. 

JURY,  Sec- 

will  find  amount  of  damages  on  penal  bond  327 

due  care  of  clerk — question  for  jury  333 

JUSTICE  OF  THE  PEACE, 

liability   of   sureties    334 

K. 

KNOWLEDGE, 

by  obligee  of  real  consideration  for  guaranty  not  essential  ..n,  381 

L. 
LACHES, 

may  release  bail   411 

see  "  Negligence." 

LANDLORD  AND  TENANT, 

concurrent    contracts    36 

rent  payable  in  installments — liability  of  surety Cl 

tenant    holding    over    82 

see  "Lease.'' 

LEASE, 

rent  payable  in  installments — liability  of  surety 81 

tenant  holding  over   82 

not  providing  that  surety  shall  not  be  liable  for  second  term. .  82 

defective^ — tenant  entering — effect  82 

reduction  of  rent — effect  on  tenant's  sureties 101 

changing  of — effect   Ill 

reduction  of  rent  with  surety's  consent Ill 

guaranteed — not  revocable 345 

guaranty  of — one  lessee's  name  omitted  366 

LEGAL  PROCEEDINGS, 

see  "  Sureties  in  Legal  Proceedings." 

LEGISLATURE, 

changing  the  nature  of  the  principal's  oflBce 72 

extending  charter  of  bank.    72 

increase  of  funds  in  the  hands  of  the  principal — liability 76 

increase  of  surety's  liability   227 

extending  time  of  office   305 

subsequently  imposed  duties  by  312 

time  of  court  changed — liability  of  bail   , .  423 

LETTERS  OF  CREDIT, 

how  construed   67 

as  a  continuing  guaranty  355 

construction   of    356 

assignability    of    357 

lex  loci  contractus  governs   370 


Index.  605 

LEVY  OF  TAXES',  Sw^ 

see  "  Taxes." 

LEX  FORI, 

remedy  of  mortgagee  against  grantee  of  mortgaged  premises  •  •     13 

LEX  LOCI  CONTRACTUS, 

governs  as  to  guaranty  370 

LIABILITY, 

of  principal 1 

of  surety  1 

of  co-sureties    3,  7 

nature  of  surety's  liability 8 

agreement  as  to  liability  among  sureties  10 

change  of,  by  agreement  among  principal  debtors  21 

of  joint  executors  and  administrators 23 

for  collateral  undertaking   40,  41 

of  surety  when  instrument  is  imperfect  52 

of  surety  whose  name  does  not  appear  in  the  bond 53 

of  principal  whose  name  appears  in  the  bond  which  is  not  sub- 
scribed      54 

of  surety — after  filling  blanks    56 

of  surety  on  instrument  whose  blanks  have  been  filled  up 57 

of  surety  on  his  contract 66 

of  surety  in  contracts   67,  68 

of  surety  may  be  limited  to  a  fixed  time 70,  71 

condition  of  suretyship  changed 72 

two  sets  of  sureties — order  of  liability   73 

surety  liable  for  penalty 74 

liability  for  funds   75,  76 

surety  may  limit  his  liability 77 

of  surety  for  acts  of  principal  not  in  line  of  duty 80 

of  surety — principal  associating  with  others  83,  84 

of  surety  on  building  contracts ■ 112 

of  surety  of  a  surety   165 

of  principal  to  surety   173 

of  principal  to  surety  for  costs  183 

of  surety's    estate    201 

co-surety  may  limit  205 

of  accommodation   indorser    206 

of  surety  on  successive  bonds  209 

of  officer  and  surety  for  trespass  231 

liability  of  surety — when  joint  and  several  234 

of  surety  on  replevin  bond 238 

of  surety — discontinuance  of  replevin  suit   239 

of  discharged  surety    248 


606  Index. 

liIABIJATY— Continued.  Sec. 

of  sureties  for  debts  due  the  estate  by  the  administrator. .  .251,  252 
general  liability  of  sureties  on  the  bonds  of  administrators  ....  253 

of  joint  guardians   267 

extent  of,  on  guardian's  bond 269 

of  sureties  on  receiver's^  bond   271 

extent  of,  on  receiver's  bond 276 

of  surety  on  assignee's  bond  277 

though  sureties  justify  in  different  amounts  held  equally  liable 

—statute    n,  323 

of  guarantor    339 

extent   of— bail    407 

of  different  sets  of  sureties 410 

and  rights — bail 414 

extent  of — bail    417 

joint  and  several — bail 419 

of  bail  generally;  see  "  Bail;  Ba,il  in  Civil  Cases;  Bail  in  Crim- 
inal Cases;  Damages." 

LIBEL, 

by  sheriff,  by  unofficial  act» 323 

LICENCE, 

of  foreign  company — revocation  of   n,  438 

LIEN, 

release  of,  by  creditor   130 

attachment  lien — insolvency  of  principal   216 

failure  to  enroll  a  judgment — liability  of  clerk  333 

of  surety,  unasserted   338 

relinquishment  of — statute  of  frauds   392 

LIMITATION, 

of  liability  by  surety   77 

LIMITED  AND  CONTINTJING  GUARANTY, 

distinction  of    34O 

terminated  by  death 346 

revocation  of  continuing   367 

death  of  guarantor 368 

running  of  the  statute  of  limitations 371 

LOSS, 

of  money — liability  of  corporate  officer  for 300 

of  money  by  public  officers  3I6 

M. 

MAINPERNORS, 

definition    403 

MARSHAL, 

wrongfully   levying  on   property    324 

see  "  United  States  Marshal." 


Index.  607 

MARSHALLING  DEBTS,  Sec, 

creditor  secured  by  mortgage  on  surety's  property — rights  of 

unsecured  creditors   151 

MERGER, 

of  debt  in  judgment — effect 95 

of  first  and  second  bond  308 

MILITARY  AUTHORITY, 

arrest  by  releases  bail    426,  431 

MINISTERIAL  DUTIES, 

of  public  officers — what  are  32S 

liability  of  clerk  for 333 

of  justice  of  the  peace  334 

MINOR, 

bond  to — sale  of  property  and  diversion  of  proceeds n,    24 

see  "  Guardian  and  Ward." 

MISIAPPROPRIATION, 

of  funds  by  principal — surety's  liability  75 

of  funds    increased    76 

by  administrator  253^ 

of  clerk  of  court 329 

of  justice  of  the  peace   334 

of  tax    collector    33T 

see  "  Funds." 

MISREPRESENTATION, 

by  creditor  or  third  party  126 

see  "Concealment;  Fraud." 

MOBS, 

liability  of  sheriff  for  suppressing  326 

MONEY, 

loss  of  corporate  officer 300 

lost  or  stolen  from  principal — public  officers  316 

taking  of  in  lieu  of  bail  437 

MORAL  OBLIGATION, 

as  consideration  in  guaranty 343 

MORTGAGE, 

of  property  to  secure  debt  of  another  18 

of  wife's  separate  property  to  secure  husband's  debt  19 

taking  as  collateral  security — effect  on  surety  123 

foreclosure  of — deficiency  judgment — joint  debtors 124 

failure  to  file  as  a  release  n,  128 

release  of,  by  creditor — rights  of  surety   154 

guaranty  of — assignability  357 


608  Index. 

MORTGAGE— Continued.  Sec. 

assignment — guaranty    359 

release  of,  by  mistake.    364 

given  to  indemnify  bail 416 

MORTGAGEE, 

rights  against  mortgagor  and  grantee  of  premises 11 

rights  of,  in  law  and  in  equity,  as  to  grantee  of  premises 12 

must  assent  to  make  grantee  of  mortgaged  premises  as  principal     13 

secured  by  surety's  property — rights  of  other  creditors 151 

release  of  lien.  .   392 

MORTGAGOR, 

sale  of  mortgaged  premises — becoming  surety  of  grantee 11 

release  of  lien — statute   of  frauds 392 

MOTHER, 

held  to  be  principal n,    18 

N. 
NATIONAL  BANKS, 

right  to  contract  as  surety 29 

selection  of  notary — liability 336 

NEGLIGENCE, 

of  creditor  in  not  availing  himself  of  the  debtor's  property 128 

of  creditor  releases  surety 132 

of  guarantee.   .   .  .    360 

due  diligence  in  collection.   363 

negligent  loss  of  securities — effect  on  guarantor 334 

laches  may  release  bail 411 

NON-COLLECTION, 

of  taxes — liability  of  surety.   ' 337 

NON-PAYMENT, 

of  sheriff  for  money  received 325 

of  note — protest.  .  .    336 

NON-RESIDENTS, 

as  sureties.  . 33 

notice  to  non-resident  principal 146 

co-surety — right  of  contribution.  .   197 

liability  of  non-resident  surety 200 

of  maker  of  note — guaranty.  .   • 359 

NON-SUIT, 

in  attachment — effect  on  surety.    215 

may  be  set  aside — rights  of  surety  on  appeal 228 


Index.  009 

NOTARY  PUBLIC,  Sec. 

liability  for  money  on  bond   of n,  301 

liability  of  sureties.  .  .   336 

NOTES, 

see  "  Bills  and  Notes." 

NOTICE, 

as  to  surety.  .   * 

as  to  guarantor 4 

to  indorser  of  note — when  required  for  non-payment 16 

of  acceptance  of  third  party's  offer  to  pay  debt  of  another 45 

of   surety's    death — effect.    .    85 

termination  of  surety's  liability.   87 

of  default— liability  of  obligee.   88 

of  creditor  of  principal's  dishonesty — effect  on  surety 127 

of  default  generally.  .  .    144a 

to  creditor  to  collect  debt 145 


written   notice. 


146 


failure  to  notify  surety  of  principal's  default 293 

of  surety's  withdrawal  from  officer's  bond 296 

release  of  surety  on  guardian's  bond  n,  87 

when  death  is— withdrawal  of  surety 306 

of  death— termination  of  guaranty.   344 

of  death— continuing  guaranty.  .  346 

of  default  of  principal.  ..    348 

in  guaranty  of  payment 349 

in  conditional   guaranty.   .   .    350 

of  default  of  guaranty.  .  352 

of  default— how  given.  .  .    353 

to  maker  of  letter  of  credit 355 

of  death  of  guarantor.    368 

of  default — waiver  of  by  agent  of  company n,  446 

of  default  to  company — waiver  of  provision 448 

NOVATION, 

not  within  the  statute  of  frauds. 385 

NUDUM  PACTUM, 

agreement  to  extend  time  of  payment 46 

O. 

OFFER, 

to  become  surety— notice  of  acceptance.  45 

mere  offer  to  guarantee — revocation  of 87 

of  guaranty — acceptance.  .  .  348 

OFFICE, 

change  of  office— liability  of  surety.  .   72 

increasing  duty  of  principal.  .    79,     80 

defaults  in,  by  sheriff.  .   323 

Bee  "  Private  Oflacws  and  Agents." 
39 


610  Index. 

OR  ORDER,  fc>EC. 

inserted  in  non-negotiable  note — effect  on  surety 109 

OVERPAYMENT, 

by  officer— liability 325 

OVERSEER  OF  POOR, 

liability  on  bond  of n,  301 

P. 

PARDON, 

of  criminal — liability  for  costs 418 

effect  of.  .  .  .   420 

PAROL  AGREEMENT, 

to  give  time  to  one  of  two  or  more  joint  debtors — effect 120 

by  creditor  to  look  to  the  principal  only 147 

of  litigants  in  attachment 228 

of  guaranty.  .  . 372 

in  case  of  guaranty 379 

to  indemnify 382 

to  pay   costs.   .   .    384 

to  indorse  note  for  another — statute  of  frauds 389 

to  pay  debt  of  contractor.   391 

to  pay  for  goods  of  another 397 

to  answer  for  the  torts  of  another 401 

PAROL  EVIDENCE, 

action  upon  specialty — setting  up  parol  agreement  to  show  ex- 
tension of  time 117 

to  show  one  signed  as  surety  n2,  171 

intention  to  sign  as  witness  48a 

admissible  to  show  who  are  sureties. 210 

cannot  vary  a  judgment.  .   321 

PARTIES, 

surety  and  principal  joined  as  parties  defendants 1 

infants.  .  .   .    24 

insane  persons.  .  .  25 

partners  .  .  .  26 

attorneys-at-law.  .  .  .   27 

corporations.   .   .   .    28 

national  banks.  .  .   29 

principal  under  duress 32 

non-resident.  .  .  .   33 

surety  and  guaranty  companies 34 

legal  effect  of  indorsement  of 210 

bringing  in  new  parties  defendants  in  attachment 218 

substitution  of  new  parties  in  replevin  suit 240 

one  of  two  sureties  absent  from  state n,  1 

to  contract  of  novation.  .    385 

incapacity  of — guaranty.   .   .    376,  380 


Index.  611 

PARTNERS,  Sec. 

dissolution  of  partnership — assumption  of  debts  by  one  partner  20 

agreeing  among  themselves  to  change  liability 21 

contract  of  suretyship.    .    26 

how  bond  to  be  construed   n,  67 

bond  for  as  agents — misappropriation  by  one  75 

principal    becoming   partner. 79,  83 

subrogation  of  surety 153 

surety  to  one  partner.  179 

PARTNERSHIP, 

dissolution  of — partner  assuming  payment  of  debt 20 

partner's  authority 26 

principal    going   into   partnership 83,  84 

effect  of  change  in 84 

Surety   for   specified   time 100 

subrogation  of  surety.  .   153 

surety  to  partner.  .  179 

as  a  co-surety.  .  .   196 

dissolution  of — revocation  of  guaranty 361 

PAYMENT, 

of  interest  in  advance  as  a  consideration  for  extension  of  time     46 

extension  of  time  for.  42,  43,  46,  47,  48,     89 

part  payment  by  one  of  several  and  joint  debtor 90 

of  debt  discharges  surety.   94 

legality  of — to  release  surety.  96 

application  of 97 

application  by  law.  .   98 

application  of  debtor's  deposits 99 

changing  place  of — effect.  .    108 

on  certificate  of  architect  or  other  person 112d 

generally — building  contracts 112e 

extension  of  time — building  contract.   113 

partial  payment  as  a  consideration  to  extend  time 114 

usury  as  consideration  for  extension  of  time 115 

of  consideration  in   installments.  .    138 

tender  of 139 

what  is  .  .   158 

by  one  standing  in  place  of  surety 158 

subrogation  of  surety's  securities.  .  .    151 

by  surety — subrogation  to  creditor's  rights 152 

of  debt  by  surety — rights  of  subrogation 153,  154 

by  stranger — rights  of  subrogation.    155 

rights  of  surety  after  payment  of  debt.    156 

payment  must  be  made  at  law  before  subrogation 157 

rule  in  equity.  .   157 

what  is 158 

when  surety  owes  principal — rights  of  parties 162 


612  Index. 

FAYMEWI— Continued.  S^c. 

of  judgment  by  surety.    : 163 

by  surety — extent  of  subrogation.  .   164 

by  surety  of  a  surety.    165 

by  surety  in  depreciated  money 167 

by  surety  before  due.   1'^'* 

part  payment  by  surety.   .    1'''6 

surety  must  be  under  legal  obligations  to  pay 177 

by  surety — assignment.  . 178 


by  giving  surety's  note. 


180 

out  of  surety's  property.    1^1 

when  surety  may  bring  action  before  payment  of  debt 182 

of  note  by  surety— attorney  fees 183 

by  surety — consequential  damages.  .   18* 

of  usury  by   surety.    185 

by  surety  of  less  amount 186 

by  sureties  severally.  .  .    187 

of  judgment  by  surety.  .  .  188 

by  surety  when  principal  is  not  liable 190 

voluntary  payment  by  surety 191 

of  debt  by  surety — statute  of  limitations 192 

by  co-surety — rights  of.  .  .   194 

by  co-surety's  note — right  to  contribution   195 

by  non-negotiable  paper — right  to  contribution 195 

by  solvent  sureties  at  law.   196 

by  solvent  sureties  in  equity.   197 

of  debt  by  one  surety — giving  a  less  amount  than  the  face  of 

the  note   198 

remedy  of  co-surety  before  payment  of  debt 202 

by   accommodation   indorser — right   of   contribution 206 

in  installments — running  of  the  statute  of  limitations 211 

of  judgment  in  installments.   228 

of  debt  due  the  estate  by  the  administrator 251,  252 

by  sureties,  of  bond  in  full.  327 

of  money  to  clerk — liability  of  surety.    329 

failure  of  clerk  to  pay  over.   331 

money  paid  into  court.   332 

guarantied.  .  .  .   348 

guaranty  of 350 

default  of— notice  to  guarantor.   352 

acceptance  of  guaranty — payment  in  default 355 

guaranty  of  collection.  .  .    359 

of  guaranty — discharges  guarantor.  .    361 

application  of — guaranty.   .   .    361 

delay  in  enforcing — right  of  guarantor 363 

part  payment  by  joint  debtor  of  barred  debt 371 

of  debt  by  guarantor.    372 

by  imprisonment  of  principal.    409 


Index.  613 

PENALTY,  Sec. 

surety  liable  only  for  penalty  of  the  bond 74 

can  recover  both  penalty  and  interest 183 

on  successive  bonds — right  of  contribution 209 

surety's  liability  on  guardian's  bond 269 

liability  of  receiver's  surety.  . 276 

liability  of  surety  for 320 

interest  on — official  bond.  .   327 

liability  of  baiL   .  .    405 

extent  of  bail's  liability  .  407 

effect  of  pardon 420 

surety  companies — construction  of  statute  as  to 440 

PHOTOGRAPH, 

sent  by  sheriff — not  official  acts.  .  323 

PLACE, 

changing — liability  of  surety 108 

PLEADINGS, 

defense  ultra  vires  must  be  pleaded  n,    30 

execution  and  delivery  n,     49 

on  bond  not  signed  by  principal  n,     51 

action  by  assumpsit  by  surety  against  principal 178 

right  of  co-surety  to  bring  assumpsit 195 

when  co-surety  must  allege  insolvency  of  principal  in  action 

for  contribution 197 

when  co-surety  may  recover  on  the  common  counts 200 

amending   pleadings   in   attachment  proceedings 217 

bringing  new  parties  defendants  in  attachment 218 

change  of  issue,  in  attachment  appeal 226 

when  surety  may  set  up  defense 243 

PLEDGE, 

of  property  to  secure  debts  of  another  18 

POLICE  OFFICER, 

liability  of  surety.  .   335 

PRE-EXISTING  DEBT, 

as  consideration  in  guaranty 342 

PREMISES, 

retention  of  as  consideration  for  guaranty 377 

improvements  upon  as  consideration  for  guaranty.   377 

PREMIUM, 

surety  company  contract  binding  though  not  paid 444 

PRESUMPTIONS, 

that  sureties  are  co-sureties n,      3 

as  to  use  of  money  borrowed  by  corporation  n,    28 


614  Index. 

PRESUMPTIONS— Co«<in.«e(?;  Sec. 

from  corporate  seal   ii>     28 

as  to  corporation  paper ii>     28 

acceptance  of  offer  to  become  surety   45 

when  bond  takes  effect  49 

of  rightful  possession  by  principal  51 

knowledge  of  terms  of  statutory  official  bonds 67b 

none  that  compensated  surety  injured n,  113 

payment  by  surety n,  176 

as  to  term  of  public  officer's  bond. n,  30i 

as  to  sureties  on  a  second  bond. 303 

as  to  term  of  office 305 

of  liability  of  indorser.  .  347 

as  to  continuing  guaranty.    354 

payment  by  guarantor.  .  .   372 

benefit  to  the  promisor.   396 

PRINCIPAL, 

who  is 1 

nature  of,  in  suretyship  and  guaranty 4 

grantee  of  mortgaged  premises.  11 

when  grantor  and  grantee  are  principals 11 

accommodation  indorser  as  principal.    14 

acceptor  of  a  daft  and  the  maker  of  a  note  are  principals 15 

in    joint    contract. 22 

duress  of 32 

contract  with  surety — consideration.  .   35 

wrongful  delivery  of  instrument  by 51 

delivery  of  imperfect  instrument.  52 

name  in  body  of  the  bond  only 53 

surety  signing  as— liability.  .   58 

denying  valid  appointment  of,  by  surety 60 

dealing  with  corporation — denial  by  surety  of  incorporation  ■  •  61 

estopped  to  deny  validity  of  bond 62 

attacking  bond  on  collateral  proceedings 63 

relation  to  surety  after  judgment 64 

judgment  against— effect  on  surety.  64 

defaults  of — liability  of  surety.   69 

employment  changed — liability  of  surety.   72 

misappropriation  of  funds  by — surety's  liability 75 

imposing  additional  duties — liability  of  surety.   79 

becoming   partner.    .    .    '^^ 

act  of,  not  in  the  line  of  his  duties 80 

associating  with  others.  . 83 

several  principals 84 

in  joint  obligations.  .  .   86 

default  of.  .  .    88 

absence  from  State — statute  of  limitations 91 


Index.  615 

TUmClPAlt— Continued.  Sec. 

disability  of — surety's  liability 92 

discharge  of — effect  on  surety.   94 

after  judgment — acts  which  will  discharge  surety 95 

legality  of  payment 96 

application  of  payments 97,  98,  99 

change  of  contract — effect.  .  .   100,  101 

consideration  for  extension  of  time  ....114,  115,  116,  117,  118,  119 

fraud  of,  in  extending  time 125 

principal's  dishonesty  known  to  obligee — effect 127 

failure  of  creditor  to  sue 134 

fraud  upon — effect.  .  .  .  136 

payment  of  consideration  in  installments  in  advance 138 

right  to  set-off  and  recoupment 144 

creditor's  promise  to  look  to  the  principal  only 147 

creditor  informing  the  surety  that  the  debt  is  paid 148 

liabiliy  of  to  surety.  .  174 

right  of  surety  to  defend  actions  brought  against  principal 150 

owed  by  surety — set-off.  .   159 

fraudulent  conveyance  by 160 

exemptions  of.  .  .   161 

when  surety  owes  principal.    162 

payment  of  judgment  by  surety.  163 

death  of — effect.  .  .  172 

debt  barred  against  principal — effect 173 

payment  by  surety  before  debt  is  due 175 

action  of  surety  against  principal 178 

liability  to  surety  for  costs  and  interests 183 

payment  of  usury  by  surety  for  principal 185 

what  amount  surety  can  collect  from  principal 186 

right  of  surety  to  take  indemnity  from 189 

payment  by  surety  when  principal  is  not  liable 190 

voluntary  payment  by  surety.  .   191 

statute  of  limitations 192 

surety  setting  aside  conveyance  by 193 

when  co-surety  may  recover  attorney  fees  and  expense  from- . .  200 

judgment  against,  concludes  surety.  237 

administrator  debtor  to  the  estate 251 

administrator  debtor  to  the  estate — common  law  rule 252 

discharge  of  an  administrator's  bond — right  of  surety 257 

judgment  against — estoppel  of  surety 265 

estoppel  by  recitals  in  bond 266 

joint  guardians — liability.  .  .  267 

his  own  successor — report 289 

continuing  principal  in  office  after  known  defaults 290 

sureties  liable  for  official  acts.   311 

money  lost  by  or  stolen  from 316 

as  to  guarantor 348 


616  Index. 

PRINCIPAL— ContinMerf.  Sec. 

insolvency  of — guaranty  of  collection.  359 

delay  by  guarantee  to  prosecute.   360 

payment  of  debt  by  guarantor.   372 

rights  of — del  credere  contracts.    394 

liability  of  bail 406 

discharge  of — rights  of  bail.   .    408 

in  criminal  cases 413 

implied  indemnity  to  bail 41& 

PRINCIPAL  IN  CIVIL  ACTIONS, 

who  is  a  principal.  .    402 

right  to  arrest.  .  .  404 

rights  of  bail  to  deliver 40& 

bail  liable  for  principal.  .   406 

extent  of  liability  of  bail.  407 

discharge  of  principal  in  bankruptcy  or  in  insolvency 408 

payment  by  imprisonment  of.    409 

liability  of  different  sets  of  sureties 410 

exoneration  of  bail 411 

exoneration  by  performance 412 

PRINCIPAL  IN  CRIMINAL  ACTIONS, 

custody  of.  .  .   413 

rights  and  liability  of  bail.  414 

implied  contract  to  indemnify  bail 415 

express  contract  of  indemnity  to  bail 416 

effect  of  surety's  liability.   417 

costs 418 

joint  and  several  liability  of  bail 419 

effect  of  pardon 420 

delivery  of,  by  bail.   421 

bail  on  appeal.  .  .   422 

appearance  of  principal.  .   423 

re-arresting  principal  on  the  same  charge 424 

giving  a  new  bond.   425 

arresting  principal  on  different  charge 426 

sureties  released  by  change  of  their  obligation 427 

exoneration  of  bail  by  act  of  God 428 

exoneration  of  bail  by  act  of  law 429 

exoneration  of  bail  by  act  of  obligee 430 

exoneration  of  bail  in  general 431 

subrogation  in  criminal  cases.   432 

effect  of  forfeiture  of  bond.    433 

setting  aside  forfeiture 434 

voluntary  appearance  or  arrest  after  forfeiture 435 

effect  of  remission  of  forfeiture.    436 

taking  money  in  lieu  of  bail 437 


Ikdex.  6  it 

PRISONER,  Sec. 

taking  articles  from — liability  of  officer 323 

officer's  liability  for  escape  of.  325 

delivery  to  incompetent  deputy  sheriff 326 

PRIVATE  OFFICERS  AND  AGENTS, 

private  bonds— liability.  .  .   282 

continuing  liability  of  private.    283 

continuing  liability  of  surety.   283 

restriction  of  surety's  liability.   284 

as  to  the  scope  of  employment 285 

increase  of  the  capital  stock  of  the  corporation 286 

discharge  of  surety  by  fraud 287 

bond  and  application  construed  together — effect  of  statements 

in   application.    .   .    287a 

liability  for  past  defaults  69 

bond  covering  prior  and  subsequent  defaults 288 

his  own  successor.  .  .  289 

continuing  in  the  same  office 290 

delinquency  of  obligee.  .   291 

failure  to  discharge  delinquent.   292 

failure  to  notify  surety  of  default 293 

covenant  not  to  sue.   294 

accord  and  satisfaction 295 

notice  of  surety's  withdrawal 296 

discharge  of  surety  by  acts  of  obligee 297 

departure  from  terms  of  contract 297a 

action  on  the  bond 298 

sureties  concluded  by  recitals  in  the  bond 299 

liability  for  loss  of  money 300 

PRIVATE  OFFICIAL  BONDS, 

duration  of  surety's  liability. 282 

continuing  liability   of  surety 283 

restriction  of  surety's  liability.  .  284 

as  to  the  scope  of  the  officer's  employment 285^ 

increase  of  the  capital  stock. 286 

discharge   of  surety  by   fraud 287 

liability    for    past    defaults 6I^ 

bond  covering  prior  and  subsequent  defaults 288 

principal  his  own  successor.    289 

continuing  in  office  after  known  defaults 290 

delinquency  of  obligee.   .    291 

failure  to  discharge  delinquents.   292 

failure  to  notify  surety  of  officer's  default 293 

covenant  not  to  sue  one  surety 294 

accord  and  satisfaction  of  officer 295 

notice  of  surety's  withdrawal.  .   296 

discharge  of  surety  by  acts  of  obligee 297 


618  Index. 

PRIVATE    OFFICIAL   BONDS— Continued.  Sec. 

action  on  the  bond 298 

sureties  concluded  by  recitals  in  a  bond 299 

liability  for  loss  of  money.   300 

PROBATE  COURT, 

probate  of  will  in  another  State — effect 245 

order  of,  against  guardian — binding  on  surety 265 

PROCESS, 

failure  of  officer  to  return 325 

PROFITS, 

making  on  public  funds.   318 

PROMISE, 

surety's  promise  being  the  inducement  for  the  contract — con- 
sideration.   .    .    .    40 

founded  upon  a  passed  consideration. 40 

to  pay  by  third  person  for  extension  of  time 42 

to   pay   debt  of   another — consideration 44 

to  extend  time  of  payment.   46,  47,     48 

to  revive  a  debt. 89 

for  a  promise  as  a  consideration 114 

by  surety  to  revive  debt 118 

of  extension — what  is.  .  .   121 

of  creditor  to  look  to  principal  only . .  •  • 147 

to  pay  a  pre-existing  debt  of  another 191 

implied  from  principal.   . 192 

as  consideration  of  guaranty.    341 

parol — in  guaranty.  .  .    343 

when  within  statute  of  frauds .• 374 

effect  of  the  statute  of  frauds 375 

of  incapacitated  debtor.  .  .    „, 376 

new  consideration.  .  .  .   377 

consideration   for.    .    .    378 

third  party — taking  debtor's  property.  .   379 

third  person  not  being  liable  in  guaranty 380 

original    consideration.    .    .    381 

oral,  to  indemnify  another.   .    382 

indemnity  contracts  in  general.    383 

what  is  a  sufficient  consideration  in  guaranty. 384 

in  novation.  .  .  .   385 

to  pay  debt  of  another.  .   386 

to  debtor  to  pay  his  own  debt 387 

to  whom  credit  is  given 388 

executing  and  indorsing  notes  for  another 389 

to  promote  interest  of  promisor.    391 

relinquishment  of  lien.  .   392 

to  perform  the  oblis'ation  of  another 393 

del  credere  ccn'ra't?    .  .   394 


Index.  619 

PROMISE— Continued.  Sec. 

to  whom  promise  must  be  made 395 

contract  for  the  benefit  of  the  promisor 396 

special  promise 397 

sale  of  goods 398 

joint  liability 399 

oral  contract  of  insurance.  .   40O 

to  answer  for  torts  of  another 401 

PROTEST, 

by  notary — bank's  selection 336 

PUBLIC  OFFICERS, 

presumption  of  knowledge  of  terms  of  bond  67b 

duration  of  liability  on  bonds  of 70,     71 

extent  of  sureties'   liability.    301 

acts  done  under  color  of  office n,  301,  n,  336 

effect  of  judgment  against  principal.   n,  301 

presumption  as  to  term  of  bond n,  301 

estoppel  to  deny  eligibility  to  office n,  301 

who   may   sue   on   bond. n,  301 

city  clerk's   bond.   .   .    n,  301 

county  treasurer's  bond.   .  .    n,  301 

consul  general's  bond.  .  .   n,  301 

bond  for  county  work  an  official  bond 301 

sureties  are  insureres  of  funds n,  301 

burden  of  proof  as  to  moneys n,  301 

question  for  jury — time  for  turning  over  funds n,  301 

collector  of  internal  revenue — bond  of n,  301 

county  judge's   bond.   .    n,  301 

notary  public's  bond.   .  .    n,  301 

overseer  of  poor — bond  of.  .    n,  301 

school    treasurer's   bond.    .    n,  301 

supervisor's  bond.  .  .  .    302 

liability  of  sureties   for  prior  defaults 302 

presumption  as  to  sureties  on  second  bond 303 

de   facto  officers .  304 

holding  over.   .   .    305 

death  of.  .  . 306 

money  used  to  cover  previous  delinquencies 307 

giving  second  bond  in  same  term 308 

giving  bond  without  statutory  authority 309 

general  and  special  bonds.   310 

sureties  only  liable  for  official  acts 311 

subsequently  imposed  duties.  .  .   312 

subsequently  imposed  duties  by  the  legislature 313 

State  not  responsible  for  its  officers 314 

forgery  of  prior  surety's  nan.e 315 

money  lost  or  stolen  fiC:.;- •  »• .. -• 316 


620  Index. 

PUBLIC  OFFICERS— Continued.  Sec- 

depositing  money  in  bank.    317 

making  profits  on  public  funds.  .  318 

interest  recovered  after  breach.  .    319 

sureties'  liability  for  penalty.    320 

estoppel  of  surety  by  judgment.   321 

construing  public  officers'  bonds  with  reference  to  statute.  ••  •321a 

sheriff's   and   constable's    liability.    322 

scope  of  sheriff's  and  constable's  liability 323 

sureties  justifying  in  different  amounts  equally  liable n,  32S 

sheriff  or  constable  levying  on  wrong  property 324 

liable  for  ministerial  duties  325 

duty  to  State  and   to  persons 326 

limit  of  surety's  liability.    327 

liability  of  surety  after  term  expires 328 

sureties'  liability.  . 329 

clerks  of  court.  .  .    329 

compensation  of  clerk  of  court 330 

failure  to  pay  over  by  clerk 331 

money  paid  into  court — liability  of  clerk 332 

delinquencies  of  clerk.  .    333 

sureties  on  bond  of  justice  of  the  peace 334 

sureties  on  bond  of  police  officer 335 

sureties  of  notary  public 336 

tax   collector 337 

subrogation  of   surety 338 

PUBLIC  OFFICIAL  BONDS, 

presumption  knowledge  of  terms  of  67h 

duration  of  liability  on    70,     71 

conditions  changed  by  legislature 72 

bonds  of — conditions  changed  by  legislature  72 

extent  of  surety's  liability.   301 

collector  of  internal   revenue — bond  of n,  301 

county  clerk's  bond.  .  .    n,  301 

county    judge's    bond 301 

notary  public's  bond.  .  .    n,  301 

overseer  of  poor — bond  of.    n,  301 

school  treasurer's  bond.  .  .   n,  301 

acts  done  under  color  of  office n,  301,  n,  336 

effect  of  judgment   against   principal n,  301 

presumption   as  to  term  of  bond n,  301 

estoppel  to  deny  eligibility  for  office n,  301 

who   may   sue   on   bond.    n,  301 

city  clerk's  bond.  .  .    n,  301 

county   treasurer's   bond.   .   .    n,  301 

consul   general's  bond.   .  .    n,  301 

bond  for  county  work  an  official  bond n,  301 


Index.  621 

PUBLIC    OFFICIAL    BONDSr— Continued.  Sec. 

sureties  are  insurers  of  funds n,  301 

burden  of  proof  as  to  moneys n,  301 

question  for  jury — time  for  turning  over  funds n,  301 

supervisor's  bond 302 

liability  for  previous  defaults. 302 

presumption  as  to  sureties  on  second  bond ~ 303 

de   facto  official   bonds   .    304 

officers  holding  over.  . 305 

death  of  officer.  .  .   306 

money   used   to   cover   previous   delinquencies 307 

giving  second  bond  in  same  term 308 

giving  bond  vi'ithout  statutory   authority. 309 

general  and  special  bonds.  .   310 

surety  liable  for  official  acts.    311 

subsequently  imposed  duties.  .   312 

imposed  duties  by  the  legislature.  .    313 

State  not  responsible  for  its  officers 314 

forgery   of  prior   surety's   name 315 

money  lost  or  stolen  from  principal 316 

depositing  money  in  bank.    317 

making  profits  on  public  funds 318 

interest  recovered  after  breach.  .   319 

liability   of  surety  for  penalty 320 

estoppel  by  judgment.  .   .    321 

construing  bond  with  reference  to  statute. 321a 

of  sheriff  and  constable.    322 

sheriff   and   constable — liability  of  sureties 323 

sheriff  and  constable  levying  on  exempt  property 324 

liability  for  ministerial  duties.    325 

duty  of  officer  to  State  and  to  persons 326 

limit  of  surety's  liability.  .    327 

liability  of  surety  after  term  expires 328 

liability  of  sureties  on  bond  of  clerks 329 

compensation  of  clerk.  .  .    330 

failure  of  clerk  to  pay  over 331 

money  paid  into   court.    332 

delinquencies  of  clerks.   .    333 

sureties  on  bond  of  justice.   334 

sureties  on  bond  of  police  officer 335 

sureties  on  bond  of  notary  public 336 

of  tax   collector.   .    337 

subrogation  of  surety.  . 338 

Q. 

QUESTION  FOR  JURY, 

condition  as  to  delivery   n,     51 

extension  of  time  n,  113 


C22  Index. 

QUESTION  OF  LAW,  Sec. 

whether  one  signed  as  surety n,       2 

what    is    reasonable    time    to    deliver    funds    to    successor    in 
office.  .  .  .   n,  301 

R. 

[RAILROAD  COMPANY,  Sec. 

loss   of  money  by   agent — liability 300 

RATE, 

company  may  charge — statute  cannot  fix.    439 

RATIFICATION, 

by  surety  of  unauthorized  act,    114 

REAL  ESTATE, 

income  from — administrator's  liability.  .  .  244 

equitable   conversion.    .    .    244 

sale  of,  beyond  jurisdiction  of  State 245 

guardian  selling — new  bond.  .  .   261 

RE-ARREST, 

of  principal  on  same  charge — liability  of  bail 424 

RECEIVER, 

liability  of  his  sureties.  .    271 

right  of  action  against  his  sureties.    272 

when  surety  is  concluded  by  judgment  against  receiver 273 

liabilities  of  sureties  for  funds.   274 

liabilities  of   sureties   on   new   bond 275 

extent  of  sureties'  liability  on  receiver's  bond.  276 

RECITALS, 

in  instrument — denial  of,  by  surety.  .  59 

estoppel  of  surety  by — in   bond 266 

restricting  surety's  liability.  .  .    284 

surety  concluded  by,  in  officer's  bond.   299 

estoppel  of  de  facto  officer  by  recitals  in  his  bond 304 

i               to  show  continuing  guaranty.    354 

J              in  guaranty  false — guarantor  not  released 366 

RECOGNIZANCE, 

subrogation  of  surety  in  place  of  State 338 

discharge  of  principal.  .  .    408 

custody  of  principal.   .  .    413 

rights  of  bail.   .   .    414 

RECOUPMENT, 

as  to  surety  and  principal.   144 

see  "  Set-Off." 


Index.  623 

RELATION,  Sec. 

payment  of  debt  by  surety — antecedent  rights 160 

when  surety  owes  principal 162,  174 

implied  contract  of  indemnity  dates  back  to  its  execution 301 

RELEASE, 

of  surety  for  fraud  of  obligee 51 

Oi  principal  debtor — reserving  remedy  against  surety  116 

of  surety  by  extension  of  time 119 

of  one  of  joint   debtors 120 

of  one  joint  debtor — judgment.  .  .   124 

of  co-surety.  .  .  .  • 133 

of  part  of  collaterals 137 

wrongful  release  of  mortgage — rights  of  surety 154 

payment  of  judgment  by  surety.    163 

of  surety — payment  afterwards.   .   .    177 

of  co-surety  who  becomes  bankrupt.   212 

of  mortgaged  security  by  mistake.    364 

of  co-guarantor 369 

when  original  debtor  is  released  .  397 

REMEDIES, 

reservation  of,  by  creditor  against  surety.   116 

contract  of  suretyship — rights  of  parties.   140 

diligence  of  surety 141 

facts  concealed.   .   .    142 

facts  developed  subsequent  to  the  contract 143 

set-off  and  recoupment 144 

compelling  creditor  to  bring  suit.  ' 145 

effect  of  notice  by  surety  to  creditor  to  bring  suit 146 

creditor's  promise  to  look  to  the  principal  alone 147 

creditor  informing  the  surety  that  the  debt  is  paid 148 

surety  may  compel  creditor  to  resort  to  securities 149 

,            right  of  surety  to  defend  action 150 

subrogation  of  creditor  to  sureties'  securities 151 

subrogation  of  surety  to  creditor's  rights 152 

what  securities  the  surety  is  entitled  to 153 

when  surety  can  take  securities.   154 

stranger  paying  debt.  .  .    155 

when  surety  will  not  be  subrogated 156 

surety  must  first  pay  the  debt 157 

what  is  payment 158 

debtor  and  creditor 159 

fraudulent   conveyances   of   principal 160 

as  to  exemptions  of  principal.  .   161 

when  surety  owes  principal.  .  162 

payment  of  a  specialty.  .   163 


€24  Index. 

KEMEmES— Continued.  Sec. 

extent  of  subrogation.  .  .   164 

Burety  of  a  surety.  .  .  165 

co-sureties 166 

marshalling  debts.  .  .  .   151 

right  of  surety  against  principal.    158 

when  surety  owes  principal.    162 

payment  of  judgment  by  surety 163 

of  co-sureties — payment  of  debt. 166 

of  creditors.  .  .   171 

death  of  principal — rights  of  creditor 172 

of  accommodation  indorser 183 

of  surety  in  equity. ly j 

surety  paying  by  his  own  note — compelling  contribution 195 

enforcing  contribution  at  law. 19  ^ 

enforcing  contribution  in  equity Ih'i 

of  co-surety  before  payment  of  debt 20:^ 

co-sureties',  different  liability — right  of  contribution 205 

of  injured  defendant  in  attachment 222 

against  receiver.  .  .  .   271 

against  tax  collector 337 

by  assignee  of  guaranty..    357 

by  assignee  of  sealed  contract 357 

In  criminal  cases — subrogation.  . 432 

BENEWAL, 

of  note 10 

of  debt.    .    .    89 

of  note — effect  on  surety.  . 122 

of  note  by  forged  note — effect  on  surety 125 

RENTS  AND  PROFITS, 

payment  in  installments — liability  of  surety 81 

tenant  holding  over.  . 82 

reduction  of — effect.  .  .   101 

reduction  with  surety's  consent.  .   Ill 

in  attachment — liability  of  surety.  .   224 

of  real  estate — liability  of  administrator's  or  executor's  surety.  244 

conversion  of  land  by  administrator 246 

non-payment  by  officer  with  proceeds  of  sale 325 

guarantied  lease — not  revocable 345 

REPLEVIN, 

bond  in — liability  of  sureties. 238 

discountinuance  of  action.  .  .  239 

substitution  of  new  parties 240 

varying  the   bond   in 241 

failure  of  officer  to  take  sufficient  bond 325 


Index.  625 

REPORTS,                               '  Sec. 

by  employee — waiver  as  to   n,     72 

RES  AD  JUDICATA, 

judgment  against  principal.  .  .   223 

RESERVATION, 

of  creditor's  right  against  surety — extension  of  time 116 

REVERSAL, 

of  judgment  in  attachment — rights  of  surety 224 

REVIVAL  OF  CONTRACT, 

by  surety.   .   .  .    34 

of  surety's  liability.  .  .   89 

of  debt  by  surety.  .  .    118 

by  surety.  .  .  .    270 

of  joint  debt.  .  .    371 

REVOCATION, 

of  suretyship 87 

of  guaranty.  .  .  .   346 

of  guaranty  by  dissolution  of  partnership.   361 

of  continuing  guaranty 367 

of  guaranty — death  of  guarantor 36S 

S. 
SALE, 

of  mortgaged  premises   by  mortgagor — rights  of  mortgagee  ■•     12 

of  real  estate — extra-territorial Mi 

of  real  estate  by  guardian.   261 

failure  to  sell,  by  sheriff 325 

of  goods — liability  of  third   party 39S 

SATISFACTION, 

of  debt  releases  guarantor 361 

see  "  Payment." 

SCHOOL  TREASURER, 

liabiliey  on   bond  of n,  301 

SCOPE  OF  CONTRACT, 

a  surety  cannot  be  held  beyond  the  scope  of  his  contract 66 

construction  of  contract — at  law.  .    67 

construction  of  contract — in  equity.    68 

liability  of  surety  for  past  defaults  of  principal 69 

surety's  liability  limited  to  a  fixed  time 70 

time  limited  to  a  subsequent  period 71 

employment  or  condition  of  principal  changed 72 

sureties  in  legal  proceedings — order  of  liability 73 

surety  only  liable  for  penalty  of  the  bond  with  accessories- ...  74 
40 


626  Index. 

SCOPE  OF  CONTRACT— ConHnuerf.  Sec. 

misappropriation  of  funds  by  principal.  .   75 

increase  of  funds  in  the  hands  of  the  principal 76 

surety  may  limit  his  liability. 77 

forged   signatures 78 

additional  employment  imposed  on  the  principal 79 

act  of  principal  not  in  the  line  of  his  business 80 

becoming  surety  for  the  payment  of  rent 81 

tenant  holding  over.  .  .  82. 

principal  associating  with  others.   83 

several  principals — partnership.  .  .    84 

death  of  surety — effect.  .  .  85^ 

construing  joint  obligation  as  several 86 

revoking  suretyship.  .  .  .   87 

default  of  principal 88 

revival  of  surety's  liability 8^ 

part  payment  by  one  of  several  and  joint  debtors 90 

absence  of  principal  from  the  State 91 

disability  of  principal  .  .   92 

conflict  of  laws.  .  .   93 

surety  only  bond  under 285 

see  "  Contract." 

SEALS, 

of   corporations — presumption    n,  28 

more  signatures  than  seals — effect.  .    53 

blanks  in  sealed  instruments — parol  authority  to  fill  up 56 

two  or  more  obligors  may  adopt  one  seal 29S 

important  consideration — in  guaranty.   .    341 

guaranty  under  seal — negotiability  of  358 

revocation  of  seal  guaranty.  .   367 

SECURING  THE  DEBT  OF  ANOTHER, 

pledging  property  for  another's  debt 18 

SECURITY, 

compelling  creditor  to  resort  to 149 

subrogation  of  creditor  to  surety's.   151 

subrogation  of  surety  to  creditor's 152 

surety  may  claim  what.  .  .   153 

when  surety  can  take.  .  .  154 

stranger  paying  debt.  .  .    155 

see  "  Collateral  Security." 

SET-OFF, 

rights  of  surety  and  principal 144 

■when  surety  owes  principal  .  .   159 

rights  of  surety  to  set-off 164 


Index.  627 

SHERIFFS  AND  CONSTABLES,  Sec. 

effect  of  judgment  against  principal   n,     65 

negligence  of  creditor  releasing  n,  128 

giving  an  additional  bond 308 

defaults  of — liability  of  surety 322 

scope  of  surety's  liability.   .    323 

levying  on  wrong  property 324 

liable  for  ministerial  duties.  .   325 

duty  to  State  and  to  persons 326 

limit  of  surety's  liability 327 

liability  of  surety  after  term  expires 328 

SIGNATURE, 

place  of.  .  .  .  48a 

more  signatures  than  seals — effect 53 

effect  of  forged  signatures.  . . . ; 78 

addition  to  notes 110 

paid  to  induce.  .   126 

conditional 129 

of  note — one  forged 366 

guaranty  of,  forged 371 

SIGNING, 

of  bond  not  ratification  of  promise  to  pay n,    24 

by  sureties,  names  not  appearing  in  bond 53 

principal  not  signing — name  in  body  of  the  bond 54 

of  surety  upon  condition — notice  to  obligee 51 

surety  signing  as  principal— effect.    58 

forged  instrument  by  surety.  .    78 

surety   signing  on  condition.    129 

by  surety — implied  contract.  .  .    301 

indorsing  note  in  blank 347 

upon  condition 35O 

STATE, 

contract  of,  relation  to  officer 313 

not  responsible  for  its  officers 314 

subrogation  of  surety,  on  official  bond 338 

subrogation  of  bail.   .   .    432 

STATUTE, 

may  fix  the  term  of  the  surety.  70 

manner  of  discharge  of  surety  n      93 

death  of  principal — effect  of  statute  as  to  filing  claim 172 

death  of  principal — statute  concerning  contribution. 192 

guardian's  bond  not  complying  with 259a 

prescribes  the  duties  of  administrator  and  guardian 261 

as  to  election  of  officer.    283 

violation  of,  in  taking  interest  on  deposits  by  officer 318 

liability  of  principal  under.  32o 


628  Index. 

STATUTE— Con  iinMed.  »ec. 

construing  public  officer's  bond  with  reference  to 321a 

imperative — effect  on  officer.  .  .    325 

as  to  surety  companies.  .    438 

cannot  fix  rate  company  may  charge 439 

imposing  penalty — surety   companies.   .    440 

STATUTE  OF  FRAUDS, 

application  of.  .  .    373 

when  a  promise  is  within.  .  374 

effect  of..  .  .    375 

incapacity  of  principal  debtor.  .   376 

new  consideration 377 

consideration  for  promise.  .   .    378 

third  party  taking  debtor's  property 379 

when  third  person  is  not  liable 380 

original  consideration.   .  .    381 

oral  promise  to  indemnify  another.   382 

indemnity  contracts  in  general.   383 

consideration  for  promise  to  pay  debt  of  another 384 

novation.  .   . 385 

promise  to  pay  debt  of  another.  .   386 

promise  to  debtor  to  pay  his  debt 387 

to  whom  credit  is  given 388 

indorsing  and  executing  notes  for  another 389 

assignment  of  promissory  notes.  .   390 

agreeing  to  pay  debt  of  another 391 

relinquishment    of   a    lien 392 

promise  to  perform  the  obligation  of  another 393 

del  credere  contracts.  .   394 

to  whom  promise  must  be  made 395 

contracts  for  the  benefit  of  the  promisor 396 

special  promise 397 

sale  of  goods.  .  .  .  398 

joint  liability 399 

oral  contract  of  insurance.  .   400 

to  answer  for  the  torts  of  another. 401 

indemnity  to  bail  by  third  party. 416 

STATUTE  OF  LIMITATIONS, 

revival  of  contract.  .  .    89 

part  payment  by  one  of  several  and  joint  debtors 90 

payment  of  barred  debt  by  joint  debtor 167 

debt  barred  against  principal — rights  of  surety. 173 

running  of,  between  surety  and  principal 192 

running  of,  between  co-sureties.   211 

when  period  commences — executor's  bond.  .    257 

bars  suit  on  guardian's  bond. 263 

time  to  bring  suit  against  surety 263 


Index.  629 

•STATUTE  OF  LIMITATIONS— Cojittjmcrf.  Sec, 

revival  of  debt  by  surety. 270 

running  in  favor  of  guarantor 371 

when  action  is  barred  as  to  bail.   431 

STRANGER, 

paying  debt — rights  of  subrogation.    155 

paying  debt — right  of  surety.  .   174 

STRICTISSIMI  JURIS, 

what  it  means.  .  .   112 

surety  contracts.  .  .  . 66,  et  seq. 

rule  of  applied  67 

rule  relaxed  in  case  of  paid  sureties  67 

SUBROGATION, 

surety  entitled  to,  when.    130 

of  surety  to  creditor.    157 

of  creditor  to  surety's  securities 151 

of  surety  to  creditor's  rights 152 

when  surety  may  be  subrogated.   ,,  153 

stranger  paying  debt.  .    155 

when  surety  will  not  be  subrogated.   156 

extent  of,  as  to  surety 164 

rights  of  surety  of  a  surety.  .   165 

rights  of  co-sureties.   .    166 

rights  of  joint  debtors.   .    167 

of  prior  surety — appeal  bond.    168 

of  guarantor.  .   .    169 

of  surety  for  paying  barred  debt  against  principal 173 

as  to  surety's  estate 201 

of  surety  on  official  bond.  .   338 

of  bail  in  civil   cases 40fi 

rights  of  bail  in  criminal  action 415 

in  criminal  cases.  .  .   432 

SUBSTITUTION, 

of  sureties.  ...  8 

forged  note  for  prior  one — effect  on  surety 125 

of  securities — effect 137 

of  new  note — right  to  contribute.   204 

of  new  bond  in  replevin.   239 

in  case  of  novation.    385 

SUCCESSIVE, 

bonds.  .  .  .     9 

sureties  in  judicial  proceedings  168 

appeal  bonds  229 

SUNDAY, 

bail  may  arrest  principal  on 412 


C30  Index. 

SUNDAY  CONTRACTS,  Sec. 

contracts  of  surety  made  on  Sunday 49 

guaranty  of — effect.  .  .  .   351 

SUPERVISOR, 

bond  of 302 

SURETY, 

who  is 1,  2,  3a 

for  the  peace  defined n,  2 

whether  one  signed  as  a  question  of  law n,      2 

how  bound.  .  .  .   2 

distinguished  from  guarantor.  .  .  4 

contract  of  .  .  .  4 

nature  of  his  liability.  .  6 

substitution   of 8 

two  sets  of — when  jointly  liable 9 

agreement  as  to  liability  among  sureties  10 

grantee  of  mortgaged  premises 11 

accommodation  indorser  as  surety 14 

indorser's  relation.  .  .  16 

wife  mortgaging  her  property  to  secure  husband's  debts 19 

assumption    of    partnership    debts    after    dissolution    by    one 

partner 20 

joint  and  several  makers  of  notes — liability 22 

Infants  as   sureties.   . 24 

corporation  as  eurety.  . 28,  30,     31 

duress  of.  .  .  .    32 

non-residents  33 

surety  and  guaranty  companies  as  sureties 34 

revival  of  contract  by.  .   35 

indorsing  note  before  and  after  execution 36 

when  bound  by  contract.  .    39 

promise  of — consideration.  .  .   40 

subsequent  undertaking.  .  .    41 

obligation  to  obligee  only.  .  49 

liability  for  wrongful  delivery  of  instrument 51 

signing  bond  upon  condition.   51 

liability  for  delivery  of  imperfect  instrument 52 

name  not  appearing  in  the  body  of  the  bond 53 

liability  of — filling  blanks 57 

signing  as  principal — liability.  .    58 

denial  of  recitals  in  the  bond 59 

denying  valid  appointment  of  principal   60 

cannot  deny   incorporation  of  corporation,   when 61 

cannot  deny  court's  jurisdiction.  .    62 

attacking  bonds  on  collateral  proceedings 63 

relation  to  principal  after  judgment.    64 

effect   of   judgment    against    principal 65 


Index.  631 

SURETY— Continued.  Sec. 

extent  of  contract 66 

term  of  office.   .    70,  71 

change  of  principal's  employment.  .   72 

two  sets — order  of  liability.  .    73 

liability  only  for  penalty.  74 

liable  for  legal  interest 74 

measure  of  liability.  .  .  75 

liability  of — for  misappropriation  of  funds  by  principal 75 

increase  of  funds.  . 76 

limiting  his   liability.    .    77 

when  released  by  forgery.   .    78 

imposing  additional  duties  on  principal.   79 

liability  for  acts  not  in  the  line  of  principal's  duty 80 

liability  for  rent.  .  .    81 

tenant  holding  over.  . 82 

principal   associating  with   others — liability 83,  84 

death  of — effect.  ...   85 

in  joint  obligations 86 

revocation  of  suretyship 87 

default  of  principal.   .    88 

revival   of   liability.    .    .    89 

running  of  the  statute  of  limitations 90 

liability  of — principal  out  of  the  State 91 

liabiliy  of — disability  of  principal.  .   92 

discharge  of  principal — effect.  .   94 

discharge  of,  after  judgment.  .   95 

legality  of  payment 96 

application  of  payments.  .  .   97,  98,  99 

change  of  principal's  contract.  .  .   100,  101 

alteration  of  instrument.  .  .  104 

alteration  of  date 105 

alteration  of  amount  of  note 106 

changing  rate  of  interest.  .   107 

changing  place  of  payment 108 

destroying  identity  of  contract.   109 

addition  of  another  surety.   .    110 

changing  contract  of  a  lease Ill 

liability  on  building  contracts.  .  112,  112f 

extension  of  time — effect.  .  .    113 

extension  of  time — where  instrument  provides  for 113a 

extension  of  time — evidence — burden  of  proof. 113b 

discharge  of,  by  extension  of  time 114 

extension  of  time  by  paying  usury 115 

reservation  of  remedy  against 116 

extension  of  time  without  consent  of  surety 117 

waiving  discharge  .  .    118 

giving  time  to  one  of  two  or  more  sureties — effect 120 


632  Index. 

SUliKIY— Continued.  Sgc. 

what  is  an  extension  of  time  of  payment 121 

discharged  by  creditor  accepting  new  note 122 

taking  collateral  security  by  creditor — effect.   123 

renewal  of  note  by  forged  note — effect 125 

being  induced  by  fraud  to  sign 126 

notice  of  creditor  of  principal's  dishonesty — effect 127 

negligence  of  creditor  in  not  availing  himself  of  debtor's  means 

—effect 128 

signing  upon  condition.  .  .    129 

surrender  of  security — effect.  .  .   130 

creditor  releasing  property.  .  .    131 

failure  of  creditor  to  apply  securities — effect 132 

release  of  co-surety.  .  .   133 

failure  of  creditor  to  sue  principal 134 

disaffirmance  of  contract  by  principal 135 

fraud  upon  the  principal.  .  136 

substitution  of  sureties.  .  .   137 

payment  of  consideration  in  installments.    138 

tender   of   payment.   .    139 

rights  of — in  general.  .  .    140 

SURETY  AND  CREDITOR— RIGHTS  OP, 

diligence  of.  .  .  .    141 

facts  concealed.  .  .    142 

facts  developed  subsequent  to  the  contract 143 

set-off  and  recoupment.  .  .   144 

notice  of  default.  .  .  .    144a 

compelling  creditor  to  bring  suit.  145 

effect  of  notice  by  surety  to  creditor  to  collect  debt 146 

creditor's  promise  to  look  to  the  principal  only •  .  •  147 

creditor  informing  the  surety  that  the  debt  is  paid 148 

at  law  the  surety  must  pay  the  debt 149 

right  of,  to  defend  action.    150 

subrogation  of  creditor  to  surety's  securities.   151 

subrogation  of,  to  creditor's  rights 152 

what  securities  he  can  claim 153 

when  surety  can  take  securities 154 

subrogation  of.  .  .  .    155,  156 

must  first  pay  the  debt 157 

after  payment — rights  of  surety  against  principal 158 

relation  as  debtor  and  creditor 159 

fraudulent   conveyance   by  principal.    160 

as  to  exemptions  of  principal 161 

when  surety  owes  principal 162 

payment  of  judgment.  .  163 

extent  of  subrogation.  .  .   164 

of  a  surety.  .  .   165 


Index.  633 

SURETY  AND  CREDITOR— RIGHTS  OF—Continued.  Sec 

co-sureties.    .    .    166 

succeeding  sureties..  .  .   168 

defense  in  courts  of  law  or  of  equity 170 

judgment  against  surety  alone.   171 

death  of  principal — effect.  .    172 

debt  barred  against  principal — effect 173 

liability  of  principal  to  surety.    174 

paying  debt  before  due. 175 

SURETY  AND  GUARANTY  COMPANIES, 

may  act  as  sureties.  34 

a  convenience  to  the  community  34 

contract  of  foreign  corporation  not  licensed  is  void 370 

statutes   affecting.   .    .    438 

statute  as  to  method  in  which  shall  justify n,  438 

statute  as  to  act  of  agent.   438 

statute  as  to  indemnity  from  principal 438 

statute  as  to  petitioning  for  release  from  liability 438 

statute  as  to  revoking  license  of n,  438 

may  take  assignment  of  claim.   n,  438 

term  "  surety  companies  "  construed.  .    n,  438 

statute  as  to  producing  certificate  of  authority 438 

bond  need  not  state  authority  to  do  business 438 

statute  cannot  fix  rates  may  charge 439 

penalty  statute — construction  of.  .   440 

foreign  surety  companies.   .    441 

presumption  of  solvency  of  foreign  corporation n,  441 

proof  of  solvency  of  foreign  corporation  unnecessary n,  441 

may  execute  guardian's  bonds n,  441 

estoppel  of  foreign  company.    n,  441 

rule  that  surety  a  favorite  of  the  law  not  applicable  to  surety 

companies.    .    .    .    442 

construction  of  contracts  of.   442 

building  contract  changed.   .   .    442 

contract  treated  similar  to  insurance  contract 443 

contract  treated  as  insurance  contracts — application   of  prin- 
ciple to  agents — premiums.   . 444 

bond  and  application  construed  together 445 

apparent  scope  of  authority  of  agents 446 

acts  of  general  agents.  .   446 

agent   with   written   authority.   .    447 

agent  with  letter  of  attorney 447 

when  agent  may  exercise  judgment. 447 

notice  to  of  default — provision  as  to  construed — waiver. 448 

where  company  succeeds  to  assets  of  another  company 449 


634  Index. 

SURETY  AND  PRINCIPAL— RIGHTS  OF,  Sec. 

part  payment  by  surety.    176 

must  be  under  legal  obligations  to  pay 177 

how  to  proceed  against  principal 178 

to  one  partner.   .  .    179 

giving  his  own  note  in  payment 180 

payment  out  of  surety's  property 181 

when  right  of  action  is  complete 182 

liability  of  principal  for  surety's  costs 183 

when  consequential  damages  may  be  recovered 184 

payment  of  usury 185 

what  amount  can  be  collected  from  principal 186 

joint  suit  by  sureties.  .  187 

payment  of  individual  judgment.    188 

right  to  take  indemnity  from  principal 189 

payment  by,  when  the  principal  is  not  liable 190 

voluntary  payment  by.  .   191 

running  of  the  statute  of  limitations  as  to  the  principal 192 

relief  of,  in  equity.   193 

right  to  contribution.   .    194 

payment  by  his  own  note 195 

right  to  enforce  contribution  at  law 196 

enforcement  of  contribution  in  equity 197 

cannot  speculate  to  the  injury  of  his  co-surety 198 

contribution  of  surety  of  a  surety 199 

liability  to  contribute  is  several 200 

liability  of  surety's  estate.  .   201 

remedy  against  co-surety  before  payment 202 

under  different  instruments — contribution 203 

substitution  of  new  note.  .   204 

may  limit  liability.  .   205 

rights  of  accommodation  indorser.   206 

in  legal  proceedings — right  to  contribution 207 

idemnity  to  one  surety.    208 

liability  to  contribute  on  successive  bonds 209 

parol  evidence  to  identify 210 

running  of  statute  of  limitations  between  co-sureties 211 

bankruptcy  of — right  of  contribution 212 

SURETY  IN  LEGAL  PROCEEDINGS, 

order  of  liability  73 

discharge  of,  on  attachment  bonds.   213 

exoneration  of  .  .   214 

attachment — judgment  of  non-suit — effect.  .   215 

release  of  attachment  lien — effect. 216 

liability  on  attachment  bonds. 217 

bringing  new  parties  in  attachment — effect  on  surety ,218 

trespass   by   officer — release  of.    219 


Index  635 

SURETY  IN  LEGAL  PROCEELINGS— rontinwed.  ^kc. 

delivery  bond — right  of  surety  to  property 220 

void  bond — rights  of.  .  .   221 

attachment — damages.   .   .    222 

conclusion  of.  .  .    223 

appeal  bond — discharge  of  surety.   .    224 

appeal  to  special  court 225 

change  of  issue  and  parties.  .   226 

increase  of  claim  on  appeal 227 

agreement  of   litigants.    .    228 

successive  appeal  bonds.  .  .   229 

when  breach  is  made.    • 230 

liability  on  indemnity  bonds. 231 

injunction  bonds 232 

when  suit  may  be  brought.    233 

liability  joint  and  several.  .   234 

what  law  governs  surety's  liability 235 

dissolution  of  injunction.  .    236 

concluded  by  judgment  against  principal 237 

liability  on  replevin  bond.  .   238 

discontinuance   of   replevin   suit.    239 

substitution  of  new  parties  in  replevin  suit 240 

varying  the  terms  of  a  replevin  bond 241 

SURETY,  JUDICIALLY  APPROVED. 

of  executor  and  administrator.  .   242 

when  concluded  by  judgment.  .    243 

liability  for  income  on  real  estate 244 

liability  for  extra-territorial  acts  of  principal 245 

liable  only  for  official  acts.   246 

new  and  additional  bond.  .    247 

liability  after  discharged.  .   248 

on  joint  bond.  .  .   249 

allowances  by  administrator  to  intestate's  widow 250 

administrator  or  executor  being  debtor  to  the  estate 251 

common  law  rule  when  administrator  or  executor  is  debtor  to 


the   estate. 


252 


general  liability — on   administrator's  bonds.    253 

administrator  and  executor  on  different  estates 254 

executor  acting  in  fiduciary  capacity.   255 

failure  of  administrator  to  report  inventory 256 

release  of,  on  administrator's  bond 257 

when  right  of  action  arises  against  an  administrator's  surety- •  258 

of  guardians — general  liability.  .  .    259 

additional  security  given  by  guardian's 260 

guardian  selling  real   estate.    •  •  ••'; 261 

discharge  of — guardian's  bond.  .  .   "  '^'  •"'"!.■ ^^^ 

termination  of  liability — guardian's  bond.   •*  •' ?  '  i 


03  (J  Index. 

SUJIETY,    JUDICIALLY   Al^FROVED— Continued.  Sec. 

when  action  arises  against  surety  on  guardian's  bond 264 

estoppel  of,  by  judgment  against  guardian.   265 

estoppel  by  recitals  in  bond 266 

of  sureties  on  bond  of  joint  guardians 267 

on  joint  bond.  .  .    268 

exteut  of  liability  on  guardian's  bond 269 

revival  of  debt  by.  . 270 

liability  of,  on  receiver's  bond 271 

right  of  action  against,  on  receiver's  bond 272 

when  concluded  by  judgment  against  receiver 273 

liability  for  funds  in  tlie  hands  of  the  receiver 274 

liability  on  new  bond  of  receiver 275 

extent  of  liability  on  receiver's  bond 276 

liability  on  assignee's  bond.  .   277 

estoppel  of — on  assignee's  bond.  .    278 

giving  new  bond   by  assignee 279 

default  of  assignee.  .    280 

discharge  of — assignee's  bond.  .   281 

SURETY  OP  PRIVATE  OFFICER, 

liability  on  private  oiRcial  bond.   282 

continuing  liability  on  private  official  bond.   283 

restricting  liability  by  recitals.    284 

as  to  the  scope  of  the  officer's  employment 285 

increase  of  the  capital  stock  of  the  corporation 285 

discharge  of,  by  fraud.    287 

bond  covering  prior  defaults.    288 

principal  his  own  successor.    289 

continuing  principal.  .  .   290 

delinquency  of  obligee.  .  .   291 

failure  to  discharge  delinquents.    292 

failure  to  notify  surety  of  default 293 

covenant  not  to  sue  one  of  the  sureties 294 

accord  and  satisfaction  of  officer.   295 

notice  of  surety's  withdrawal.    296 

discharge  by  acts  of  the  obligee 297 

action  on  the  officer's  bond 29'i 

concluded  by  recitals  in  the  bond  of  an  officer 299 

liability  for  loss  of  money  by  officer 300 

SURETY  OF  PUBLIC  OFFICER, 

liability  of  public  official  bonds 301 

liability  on  prior  defaults.    302 

presumption  as  to  sureties  on  second  official  bond 303 

bond  of  de  facto  officers 304 

officers  holding  over.   .   .    305 

death  of  public  officer 306 

money  used  by  officer  to  pay  previous  delinquencies 307 

giving  second  bond  in  same  term 308 


Index.  637 

fRETY  OF  PUBLIC  OFFICER— Continued.  Sec. 

giving   bond   without   statutory   authority 309 

general  and  special  bonds. 310 

liability  only  for  official  acts 311 

subsequently  imposed  duties.  .  .  312 

subsequently  imposed  duties  by  the  legislature 313 

State  not  responsible  for  its  officers 314 

forgery  of  prior  surety's  name 315 

money  lost  by  principal.   316 

depositing  public  money  in  bank 317 

making  profits  on  public  funds.  . 318 

interest  recovered   after   breach.    319 

liability  of  surety  for  penalty 320 

estoppel  by  judgment 321 

on  sheriff's  and  constable's  bond 322 

scope  of  liability  on  sheriff's  and  constable's  bond 323 

sheriff  levying  on  wrong  property 324 

liability  for  ministerial   duties.   .    325 

officer's  duty  to  State.   326 

limit  of  liability.  .   327 

liability  after  term  expires.   328 

liability  on  bond  of  clerk 329 

liability  for  clerk's  accounting 330 

failure  of  clerk  to  pay  over 331 

money  paid  into  court.    332 

delinquencies  of  clerk 333 

of  justice  of  the  peace.  .  334 

of  police  officer.  .  .  .  335 

of  notary  public.   .   .    336 

of  tax  collector 337 

subrogation  on  official  bond.  .  338 

when  bound  for  costs.  .   384 

promise  to  indemnify  395 

different  sets  of — liability.  .  .   410 

SURETY  OF  SURETY, 

rights  of   subrogation.    165 

contribution  by  .   .  .    199 

SURETYSHIP, 

defined n,  2 

distinguished  from  guaranty.  .  .   4 

how  created 5 

questions  of  consideration.  .  .    39 

surety's  promise  being  a  consideration 40 

moral  obligation  will  not  support.   40 

subsequently  contracted.   .   .    40,  41 

alteration  of  contracts  of.    55 

may  act  retrospectively.  .    69 


638  Index. 

SURETYSHIP— Conftnuerf.  Sec 

death  of  surety — effect 85 

revocation 87 

conflict  of  laws 93 

on  condition.  .  .  .    129 

in  general 140 

between  surety  and  principal 177 

SURRENDER, 

of  old  note  for  new — consideration 37 

of  securities  by  surety  at  the  instance  of  the  principal — effect- .  51 

old  note  for  new  which  is  forged — effect  on  surety 125 

of  security  by  creditor — effect.  .   130 

of  security — discharge   of   guarantor.   .  ' 362 

of  principal  by  bail.    421 

of  principal,  by  bail  after  judgment 422 

SURROGATE, 

liability  for  loss  of  money 300 

T. 
TAX  COLLECTOR, 

misappropriation  of  taxes  by.    307,  337 

liability  of  sureties.  .  .  337 

where  bond  of  is  lien  on  real  estate n,  337 

prior  defalcations  not  covered.   337 

estoppel  to  deny  principal  was  collector 337 

TAXES, 

misappropriation  of,  by  collector.    307 

extending  of  time  to  pay  by  legislature 313 

acts  of  sheriff  as  to.  . 323 

tax  collector — liability  of  sureties.  337 

TENDER, 

of  payment 139 

of  payment  by  surety.  .  .   158 

of  payment  of  attachment  judgment — effect  on  surety 224 

what  is  legal — estoppel  to  raise. 332 

TERM  OF  OFFICE, 

how  fixed 70 

time  limited  to  a  subsequent  period 71 

death  of  surety — effect.  .  .   85 

duration  of  surety's  liability.  .   282 

continuing  liability  of  surety.   283 

successive  terms — liability  of  surety 302 


Index.  BSD- 

TERM  OF  OFFIC^E— Continued.  Sec. 

holding  over.   .  .    305 

added  to  by  the  legislature. 305 

expiration  of — liability  of  surety.    328- 

money  paid  to  clerk 331 

THEFT, 

of  money  from  public  oflacer 316 

TIME, 

of  term  of  office.  . 70,  71 

extension  of— payment 114,  115,  116,  117,  118,  119 

for  extension  must  be  certain 119 

limited  on  private  official  bonds 282 

official  time  of  surety.  .  284 

surety  cannot  be  bound  for  a  longer  time  than  specified 285 

expiration  of  term — surety's  liability.   328 

notice  of  default — what  is  a  reasonable  time 353 

TORTS, 

attachment  of  goods — tort  of  officer 222 

of  officer  in  levying  execution.  231 

by  police  officer.  .  .   335 

of  others — guaranty 401 

TREASURER, 

liability  of  surety  on  bond 297 

of  county — special  and  general  bonds 310 

of  county — liability  for  negligence 314 

TRESPASS, 

by  officer  in  attachment — effect  on  surety 219 

levy  on  exempt  property 231 

of  justice  of  the  peace 334 

TROVER, 

effect  of  judgment  against  principal   n,     65- 

see  "  Surety  in  Legal  Proceedings." 

TRUSTS, 

indemnity  of  surety — trust  for  creditor.  .   151 

co-surety  taking  property  in  trust — right  of  contribution 208 

execution  of — will.  .    246 

administrator  debtor  to  the  estate.  251 

of  administrators 261 

U. 
ULTRA  VIRES  CONTRACTS, 

of  corporations 30 

as  to  consideration 35 

contract  of  guaranty — incapacity  of  debtor 380 


C40  Index. 

UNITED  STATES  MARSHAL,  Sec. 

false  arrest  by n,  323 

see  "  Marshal." 

UNLIQUIDATED  DAMAGES, 

set-off  of  n,  144 

USURY, 

as  consideration  for  extension  of  time  of  payment 115 

paid  by  surety.  .  .   185 

V. 

VENUE, 

change  of,  on  appeal — effect  on  surety's  liability 225 

change  of — liability  of  bail.  .   423 

VOLUNTARY  BONDS, 

given  by  public  officer — effect.  .  309 

VOLUNTARY  PAYMENT, 

by  surety.  .  .   177 

W. 

WAIVER, 

of  duty  of  employee  to  furnish  reports  n,    72 

of  discharge  by  surety.   118 

of  fraud  by  creditor.  .    125 

officer  may  waive  delivery  of  property — attachment 214 

by  agent  of  company  of  notice  of  default n,  446 

of  provision  as  to  notice  of  default  to  company 448 

WANT  OF  CONSIDERATION, 
see  "  Consideration." 

WASTE, 

by  administrator — surety's  liability 244 

WEAPONS, 

taking  deadly  weapons  from  prisoner — liability  of  officer 323 

WIDOW, 

allowances  to,  by  administrator 250 

WIFE, 

mortgaging  separate  property  of.   19 

guaranty  by  not  in   writing  void n,  374 

see  "  Husband  and  Wife." 

WILLS, 

probate  of,  in  another  State. 245 

WITNESS, 

evidence  that  person  signed  as 48a 

[Total  Xumber  of  Pages  656.] 


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